Attorney General Opinion on Filling Vacancies

AGO 65-66 no. 20

Some highlights from the opinion...

"A public office is a public trust, and should persons to be appointed thereto should be selected solely with a view to the public welfare. It goes without saying that the power of appointment to public office is to some degree limited by public policy and by statutory provisions which invalidate the appointment of relatives, or which make certain persons ineligible to office. An appointment of an ineligible person is a nullity." (Emphasis supplied.)



"An officer intrusted with the power of appointment should exercise it with disinterested skill and in a manner primarily for the benefit of the public, for it is the policy of the law to secure the utmost freedom from personal interest in such appointments. So, it is contrary to public policy to permit an officer having an appointing power to use such power as a means of conferring an office upon himself, or to permit an appointing body to appoint one of its own members." (Emphasis supplied.)

". . . Both the common law and the statute demand that the power of appointment be exercised fairly and impartially. In order to attain this purpose it is important that the deliberations of the appointing body not only be free from wrongdoing but free from suspicion of wrong as well. [Citing cases] For this reason the general law has been laid down ‑ reinforced in many instances by appropriate statutes ‑ that it is contrary to public policy to permit a Board to exercise its power of appointment by designating some one from its own body. [Citing cases and 42 Am.Jur. 97, p. 955] Such purpose cannot be attained when the appointee as a member of the appointing body has the opportunity for a closer association and influence upon the members much greater than would be the case where the persons considered for appointment were not members of the appointing body. (Emphasis added)

"The ineligibility which makes the appointment to a second office a nullity has not been limited to that created by constitution or statute. Even in the absence of these formalized prohibitions, at common law, on the ground of public policy a member of an appointing body is ineligible for appointment to a conflicting office by that body, even though his own vote is not essential to the appointment. McQuillin,Municipal Corporations, Sec. 12.75; 67 C.J.S., Officers, Sec. 20; 42 Am.Jur., Public Officers, Sec. 97, p. 955; Annotation: 31 L.R.A. (N.S.) 575. . . .
"The cases ground the public policy prohibition on the need for impartial official action, without suspicion of bias which may be against public interest. They say the appointing board cannot absolve itself of ulterior motives if it appoints one of its own, whether or not his vote was necessary to the appointment, since the opportunity improperly to influence the other members of the board is there. The necessity that public bodies be free from personal influence in making appointments to office cannot be secured when the appointee has the real opportunity his associations and relations afford to place his colleagues under obligations they may feel require repayment." (Emphasis added)

What is the legal meaning of the word 'nullity'? Does it mean what it sounds like it means?