Could a Delaware licensing board member keep serving after her three-year term expired if the Governor hadn't yet appointed a replacement?

Official title

95-IB11 02/14/1995 AG Opinion Letter to Iva J. Boardman re: Holdover Nursing Board Members After Expiration of Term

Plain-English summary

The executive director of the Delaware Board of Nursing asked whether a Board member whose three-year term had expired could keep serving until the Governor appointed a replacement, or whether the member had to step down immediately at the end of the term. The Nurse Practice Act itself didn't say. The AG turned to the Delaware Constitution, which provides in article XV, section 5 that "all public officers shall hold their respective offices until their successors shall be duly qualified." Citing a line of Delaware Supreme Court cases construing that clause, the AG concluded that a Board member does not automatically vacate the seat when a term ends; the member may lawfully continue serving, with full voting and quorum powers, until a successor is appointed and duly qualified. The AG noted this constitutional holdover rule exists precisely to prevent boards from losing the members needed for a quorum, which could otherwise stop them from carrying out their public-health and licensing duties.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a Delaware nursing board member have to leave immediately once her three-year term ended?
A: No, according to this opinion. The AG concluded the Delaware Constitution's holdover clause let the member keep serving, and exercising full Board powers, until a successor was appointed and duly qualified.

Q: What if the statute creating a particular board doesn't mention holdover service at all?
A: This opinion held that the constitutional holdover clause in article XV, section 5 fills that silence and controls over an inconsistent or silent statute, because it's a constitutional provision rather than merely a statutory one.

Q: Why does Delaware law let board members stay past their term?
A: According to this opinion, the point is to prevent a board from losing its quorum and being unable to function while the Governor is in the process of appointing a successor.

Background and statutory framework

The Nurse Practice Act, 24 Del. C. ch. 19, sets three-year terms for Board of Nursing members appointed by the Governor under Delaware Constitution art. III, sec. 9 and 24 Del. C. sec. 1903(c), and requires a successor to be appointed sixty days before a term expires under sec. 1903(d), but the Act does not address what happens if that appointment is late. The AG found the gap filled by Delaware Constitution art. XV, sec. 5, which the Delaware Supreme Court has repeatedly construed to prevent a vacancy from arising merely because a statutory term expired, so long as the incumbent has not died, resigned, or been removed. The opinion traced this holding through State ex rel. Gebelein v. Killen, Opinion of the Justices, State ex rel. Southerland v. Caulk, and Barron v. Kleinman, and noted the same silence exists in the statutes governing several other professional licensing boards, including Medical Practice, Cosmetology and Barbering, and Pharmacy.

Citations and references

Statutes:

• Delaware Constitution art. III, sec. 9, governs gubernatorial appointment of Board of Nursing members
• Delaware Constitution art. XV, sec. 5, provides that public officers hold office until a successor is duly qualified
• 24 Del. C. sec. 1903(a), sets the three-year term for Board of Nursing members
• 24 Del. C. sec. 1903(c), confirms Board members are appointed by the Governor
• 24 Del. C. sec. 1903(d), requires a successor be appointed sixty days before a term expires
• 24 Del. C. sec. 1904(b), addresses the quorum needed for the Board to act

Cases:

• State ex rel. Gebelein v. Killen, Del. Supr., 454 A.2d 737 (1982), holding art. XV, sec. 5 prevents public offices from becoming vacant on mere term expiration
• Opinion of the Justices, Del. Supr., 189 A.2d 777, 778 (1963), describing the holdover clause's purpose of preventing an interregnum in office
• State ex rel. Southerland v. Caulk, Del. Super., 138 A.2d 354, 357 (1927), an earlier statement of the same holdover principle
• Barron v. Kleinman, Del. Supr., 550 A.2d 324 (1988), applying the holdover clause to let a Justice of the Peace continue serving absent a qualified successor

Source

• Landing page: https://attorneygeneral.delaware.gov/1995/02/14/95-ib11-02-14-1995-ag-opinion-letter-to-iva-j-boardman-re-holdover-nursing-board-members-after-expiration-of-term/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/08/Holdover-Nursing-Board-Members-95-IB1137.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Atty Gen. Op. No. 95-IB11

M. JANE BRADY STATE OF DELAWARE

ATTORNEY GENERAL DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY KENT COUNTY SUSSEX COUNTY
Carvel State Building Sykes Building 114 E. Market Street
820 N. French Street 45 The Green Georgetown, DE 19947
Wilmington, DE 19801 Dover, DE 19901 (302) 856-5352
Criminal Division (302) 577-2055 (302) 739-4211 Fax: (302) 856-5369

Civil Division (302) 577-2500 Fax: (302) 739-6727
Fax: (302) 577-6630
Civil Division-New Castle County

PLEASE REPLY TO:

February 14, 1995

Iva. J. Boardman

Executive Director
Delaware Board of Nursing
Cannon Building

Suite 203

P.O. Box 1401

Dover, DE 19903

Re: Holdover Nursing Board Members
After Expiration of Term

Dear Ms. Boardman:

The Delaware Board of Nursing ("Board") has asked whether a
member of the Board whose term has expired may continue service on
the Board until a replacement has been selected, or whether a
member is obligated to quit the Board at the expiration date of the

term. For the reasons set out below, we conclude that under the

Delaware Constitution, a member may continue to serve on the Board
after expiration of his or her term until a successor is appointed
and duly qualified.

24 Del. C. ch. 19, describes the

The Nurse Practice Act,

process by which Board members are appointed and their term of

Iva J. Boardman, R.N., M.S.N.

February 14, 1995

Page 2
office. Board members are appointed by the Governor. Delaware
Constitution, art. III, sec. 9; 24 Del. C. sec. 1903(c). Because a
Board member's salary, fees, and emoluments of office do not exceed
$500.00 annually, the appointment is not subject to confirmation by
the Delaware Senate. Delaware Const., art. III, sec. 9. "The term
of office of every member appointed to the Board, except those
appointed to fill vacancies occurring during any term of office, is
3 years." 24 Del. C. sec. 1903(a). See, also, 24 Del. C. sec.
1903(f) ("Each member shall serve for a term of three years...").
A person may serve no more than two consecutive terms on the Board.
24 Del. C. sec. 1903(g). The Nurse Practice Act also provides that
"[s]ixty days prior to the expiration of the term of any member of
the Board, a successor shall be appointed by the Governor." 24
Del. C. sec. 1903(d). Vacancies arising from the expiration of a
term are not always timely filled in the manner envisioned by
section 1903(d). As a result, a Board member's term may expire
without a successor having been appointed by the Governor.

The Nurse Practice Act is silent as to whether a Board member

may continue in office after his or her term expires, or if a

vacancy exists.¹ If members are prohibited from continuing to

¹We note the variety of statutorily prescribed terms of office
for members of Boards within the Division of Professional
Regulation. For example, as with the Board of Nursing, members of
the Board of Medical Practice (see 24 Del. C. sec. 1710(h)), Board
of Cosmetology and Barbering (see 24 Del. C. sec. 5104(b)), and
Board of Pharmacy (see 24 Del. C. sec. 2504(b)) serve a three-year
term with no mention of the status of members whose terms expire
before a successor is appointed and qualified. Members of the

Iva J. Boardman, R.N., M.S.N.
February 14, 1995
Page 3

serve when their terms expire and until a successor is appointed,
the potential attrition of Board members in such a circumstance

could render the Board unable to establish a quorum (See 24 Del. C.

sec. 1904(b)) in order to discharge its duties under the Nurse
Practice Act and protect the public health, safety, and welfare.
The Delaware Constitution addresses this issue and makes clear that
upon expiration of the statutory term set by the Nurse Practice
Act, a member of the Board may lawfully hold office until his or

her successor is appointed and duly qualified.

Under article XV, sec. 5 of the Delaware Constitution, "All
public officers shall hold their respective offices until their
successors shall be duly qualified, except in cases herein
otherwise provided." The Delaware Supreme Court has continuously
construed this constitutional provision to mean that "there is no
vacancy on the mere expiration of a term" and that a Board member
whose term expires may continue to serve until a successor is

appointed and duly qualified. State ex rel. Gebelein v. Killen,

Del. Supr., 454 A.2d 737, 751 (1982). It is of no consequence that

Board of Dental Examiners serve a term of "3 years or until their
successors are appointed and qualified." 24 Del. C. sec. 1102(a).
Members of the Board of Funeral Service Practitioners serve a
three-year term which "expire[s] on the date specified in the
appointment; however the member shall be permitted to serve on the
Board until a successor has been appointed." 24 Del. C. sec.
3103(b). On the other hand, the three-year term of office for
members of the Board of Chiropractic and Board of Social Work
Examiners "shall expire on the date specified in the appointment,
and the member shall no longer be eligible to participate in Board
proceedings unless lawfully appointed." 24 Del. C. secs. 702(b)
(Chiropractors), 3904(b) (Social Work Examiners).

Iva J. Boardman, R.N., M.S.N.
February 14, 1995
Page 4

the Nurse Practice Act is silent as to whether the Board member may
continue to serve after the statutory three-year term expires and
until a successor is appointed and duly qualified. It is axiomatic
that a conflicting statute must yield to the constitutional
mandates of art. XV, sec. 5: "A constitutional power, if not self-
limiting, may be limited only by other provisions in [the
Constitution]", so that "the preeminence of the constitutional
authority nullifies" contrary statutory provisions in the Nurse

Practice Act. State ex rel. Gebelein v. Killen, 454 A.2d at 752.

The Delaware Supreme Court has had several opportunities to

consider the meaning of art. XV, sec. 5 and has consistently held

that constitutional provision

was apparently enacted for the very purpose of
preventing a possible vacancy or interregnum in
an office where there [is] not a properly
qualified successor at the expiration of the
usual statutory term of such office. Opinion of
the Justices, Del. Supr., 189 A.2d 777, 778
(1963), quoting State ex rel. Southerland v.
Caulk, Del. Super., 138 A.2d 354, 357 (1927).

The Supreme Court reaffirmed these principles in State ex rel.

Gebelein v. Killen and left no doubt that art. XV, sec. 5 is

intended to avoid the disruption of governmental affairs which
would occur if a public office were left vacant by the expiration
of a term: "The plain purpose of both Article III, sec. 9 and
Article XV, sec. 5 is to prevent public offices from becoming
unoccupied and being without an incumbent to perform the public

duties." State ex rel. Gebelein v. Killen, 454 A.2d at 748,

Iva J. Boardman, R.N., M.S.N.
February 14, 1995
Page 5

citations omitted. Art. XV, sec. V of the Delaware Constitution
"gives an incumbent the legal right to remain in office at
expiration of term when no successor is qualified. The incumbent
continues as a constitutionally sanctioned de jure officer." State

ex rel. Gebelein v. Killen, 454 A.2d at 748. As the Court further

explained:

where there is an express constitutional provision
that all public officers shall hold their respective
offices until their successors shall be duly ,
qualified, as in section 5 of article 15, the mere
expiration of the usual statutory term does not
create a vacancy if there is a person who has the
lawful right to perform the duties of such office.

State ex rel. Gebelein v. Killen, 454 A.2d at 751, quoting State ex

rel. Southerland v. Caulk, Del. Supr., 138 A.2d 354, 357 (1927).

The Delaware Supreme Court has recently concluded that art.
XV, sec. 5 of the Delaware Constitution entitled a Justice of the
Peace to continue to hold office and exercise her duties after the

expiration of her fixed term "in the absence of a qualified

successor." Barron v. Kleinman, Del. Supr., 550 A.2d 324 (1988).

The Court reasoned that "where an incumbent holds office after the
expiration of a term under a general power of appointment he is
viewed as a de jure officer subject to the holdover provisions of
Article XV, Section 5." Id. 325, citations omitted. Because the
purpose of art. XV, sec. 5 is "preventing a vacancy following the
expiration of a term of office" Id. at 325, public officers "may
continue in office at the expiration of their term of office." Id.

at 326. Indeed, "[i]n the absence of death, resignation, or

Iva J. Boardman, R.N., M.S.N.
February 14, 1995
Page 6

removal", the holdover official continues to hold office "until her

successor is duly qualified." Id. at 327.

Art. XV, sec. 5 of the Delaware Constitution controls over any
inconsistent statutory provision in the Nurse Practice Act. Based
on the foregoing, we conclude that a member whose term of office on
the Delaware Board of Nursing has expired without a successor
having been appointed may continue to serve on the Board and
exercise all powers and duties of a Board member until his or her
successor is appointed and duly qualified. This result is dictated
by the Delaware Constitution to assure that Board memberships do
not go unoccupied by reason of the expiration of a term, and

so that important Board affairs may continue to be executed for the
protection of the public health, safety, and welfare.

Please feel free to contact us should you have any further

questions.

P.S. Feliceangeli
Deputy Attorney General

Approved:

Michael Bach
State Solicitor