Opinion No. (1979) ( 1979 )

REQUESTED BY: Dear Senator Carsten:

In your letter of May 10, 1979, you call to our attention Legislative Bill 281 which you introduced and certain amendments suggested by the Urban Affairs Committee which as you point out are found on page 801 of the Legislative Journal. You ask whether or not the enactment of Legislative Bill 281 as it is proposed to be amended would cause vacancies in the city commission from the effective date of the act until the next regular city election in Nebraska City in May, 1980.

The effect of Legislative Bill 281 as amended would be to increase the number of city commissioners in this class of cities from 3 to 5. This would be done by adding a commissioner of the department of public works and a commissioner of the department of parks and recreation. A commission form of government in cities of this size would then become identical to those in cities of the primary class.

The practical effect of Legislative Bill 281 would be to authorize the two additional commissioners in a city of this class as of the effective date of Legislative Bill 281 but at the same time, provide for the filling of those two additional commission positions in 1980. Apparently one of the reasons it is desired to wait until 1980 to fill these positions is so that all of the commissioners will not be up for election at the same time but rather will be staggered in the terms in which they serve.

Your specific question was whether or not this bill would create a vacancy. While it is true that positions which will have been authorized will not be filled, we do not believe that it would be appropriate to categorize this occurrence as the creation of a vacancy. As we stated above the Legislature in 1978, by the enactment of Legislative Bill 281 will create two additional commissioners who will not be selected until 1980. We find nothing wrong with this procedure however likewise we would see nothing wrong with the Legislature making provisions for these positions to be filled in a temporary manner until 1980 if that were the Legislature's desire.

In conclusion then specifically we find nothing legally objectionable about the Legislature creating a position in 1979 which will not be filled until 1980. We hope this adequately responds to your concern over the effect of the enactment of this legislation and we would of course be most willing to visit with you further if you have other specific questions.