Can an appointed Minnesota park district commissioner keep serving after the four-year term expires until a successor is appointed, and when exactly does the term expire?

Plain-English summary

The Suburban Hennepin Regional Park District has seven commissioners under Minn. Stat. § 383B.68: five elected and two appointed by the Hennepin County Board of Commissioners. The appointment in question had been made on January 17, 1989, when the county board unanimously reappointed one of the two appointees. Under § 383B.69 the appointee was to serve until January 1, 1989, and under § 383B.68 each appointed commissioner serves a "four-year term." The reappointment came 16 days late.

Two questions followed. Could the appointee keep serving past expiration of the term until a successor was named? And did the four-year term expire on January 1, 1993 or on January 17, 1993?

Attorney Jeffrey R. Brauchle of Oppenheimer, Wolff & Donnelly, representing the Park District, asked both questions of the AG. The AG answered yes to the first and January 1 to the second.

On holdover, the AG noted that the statute had no express holdover provision for appointed commissioners, unlike the parallel provision in § 383B.68, subd. 3, which expressly said elected commissioners serve "until a successor is elected and qualifies." The 1985 legislature had deleted the "and until a successor is appointed and qualified" phrase from the appointed-commissioner subdivision during a comprehensive rewrite. A literal reading of the contrast might suggest no holdover for appointed commissioners. The AG rejected that reading. The deletion in 1985 was tied to restructuring the source of appointment (from Minneapolis Park Board to Hennepin County Board), not to expressly forbid holdover.

Without an express provision, the AG concluded, an incumbent officer may continue to serve as a de facto officer after term expiration until a successor is appointed and qualifies. That conclusion rested on a chain of Minnesota and out-of-state authority: Van Cleve v. Wallace, 216 Minn. 500, 13 N.W.2d 467 (1944), where the Minnesota Supreme Court held a past city council president should continue in office until a successor was elected; Smallwood v. Windom, 131 Minn. 401, 155 N.W. 629 (1915), where the court (while striking down a long holdover provision as unconstitutional) said its decision should not be read to bar an incumbent from continuing duties pending an appointment; State ex rel. McCarthy v. Watson, 132 Conn. 518, 45 A.2d 716 (1946), distinguishing de facto from de jure holdover; and Reed v. President and Comm'r of Town of North East, 172 A.2d 536 (Md. App. 1961), articulating the rule that the public interest requires offices to be filled at all times. A prior AG opinion, Op. Atty. Gen. 618a-2 (February 6, 1959), reached the same conclusion about University of Minnesota Regents.

On term expiration, the AG read § 383B.68 together with § 383B.69. Section 383B.69 was a transitional provision that set up a staggered rotation, with appointed terms expiring on January 1 of an odd-numbered year. If the four-year term were measured strictly from the date of appointment, the staggered rotation would slip out of alignment every time an appointment came late. To preserve the rotation, the AG concluded the term technically expires on January 1, regardless of when the actual appointment was made.

Currency note

This opinion was issued in 1993. 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.

Historical context: what the AG concluded

The opinion stands on two doctrines that were already well established in 1993 and that the AG drew together to fill a gap in the statutory text.

The de facto / de jure distinction. The AG quoted State ex rel. McCarthy v. Watson for the rule: if a statute fixes a definite term without a holdover provision, an incumbent who continues to serve past the expiration is a de facto officer, not a de jure officer. A vacancy exists and may be filled. If the statute includes a holdover provision ("and until a successor is appointed and qualified"), the incumbent is a de jure officer, and unless the statute says otherwise, no vacancy exists.

The Minnesota cases the opinion cited applied this rule with a strong policy lean toward filling offices without interruption. Van Cleve listed factors that favored holdover: the incumbent had taken the oath of office prior to term expiration, there was no actual break between terms, and the council could not elect a successor. The Minnesota Supreme Court in Woodbridge v. City of Duluth, 121 Minn. 99, 140 N.W. 182 (1913) said: "[I]t is undesireable and out of accord with judicial determination, from the earliest times, that any interregnum should be allowed to exist in the transition of forms of government or change of officers . . . . Questions involving government must not be determine along technical lines. Practical and broad considerations should control."

Smallwood v. Windom came at the issue from the other direction. The Minnesota Supreme Court there struck down a statute that purported to allow a clerk of court to hold over for seven years and two months, finding the long holdover unconstitutional. But the court was careful to say its decision should not be used to suggest that "one in office for a definite term without a hold over provision may not, upon the occurrence of a vacancy, continue to perform the duties of his office until action by the appointing power." That dictum supported the AG's conclusion.

The legislative-history reading. Reading the 1985 amendment, the AG concluded the deletion of the holdover phrase was incidental to a restructuring of the appointment source (from Minneapolis Park and Recreation Board to Hennepin County Board of Commissioners). The legislature was not addressing whether commissioners could hold over, and the absence of an express holdover provision should not be read as a deliberate prohibition.

The staggered-rotation reading. Section 383B.69 was a transitional statute that aligned terms to a fixed schedule. The AG cited a 1965 opinion (Op. Atty. Gen. 618a-2, March 8, 1965) that had reached a similar conclusion about University of Minnesota Regents: terms expire according to the fixed schedule, not on the anniversary of the actual appointment. Holding to the fixed schedule maintains the rotation; tying the term to the actual appointment date would destroy it as soon as one appointment slipped.

So the appointee whose reappointment came on January 17, 1989, was still serving a term that expired on January 1, 1993, not January 17, 1993. After January 1, 1993, the appointee was de facto in office and could continue to perform the duties until the Hennepin County Board named a successor and the successor qualified.

The opinion was signed by Assistant Attorney General Kenneth E. Raschke Jr. on behalf of AG Hubert H. Humphrey III.

Common questions

Q: What is a "de facto officer"?
A: A person who continues to perform the duties of an office after the statutory term has expired, when the statute does not expressly authorize holdover. The person is not legally entitled to the office (a successor may be appointed at any time), but the official acts taken during this period are generally treated as valid for public-interest reasons.

Q: Why does the public interest favor holdover?
A: To prevent gaps in government. Courts have consistently held that offices should be filled without interruption, and that an incumbent should be allowed to continue performing duties until a successor is in place rather than leaving the office vacant.

Q: What if the appointing body refuses to appoint a successor for a long time? Can the incumbent serve indefinitely?
A: The 1915 Smallwood decision suggests there is a constitutional limit on how long a holdover can last. A seven-year-and-two-month statutory holdover was struck down. The AG opinion does not address the outer time limit.

Q: Can the holdover commissioner be removed any time?
A: Yes. Since the incumbent is de facto and not de jure, the appointing body retains the power to appoint a successor at any time. The successor's qualification ends the holdover.

Q: If the term expires on January 1 but the appointing body misses the date, does the appointee's term still end January 1?
A: Yes. Under the AG's reading, the term expires on the statutory date regardless of when the appointment was actually made. The appointee then serves as a de facto officer until a successor is appointed.

Q: Does the holdover commissioner have full voting power on the park board?
A: The AG opinion did not directly address voting power. Generally, a de facto officer's official acts are valid. The opinion's reasoning supports the view that the holdover commissioner can continue to perform "the duties of office" until a successor qualifies.

Q: Does this rule apply to other Minnesota appointed offices without express holdover language?
A: The AG's reasoning is general. The opinion cites Van Cleve, Smallwood, the 1959 Regents opinion (Op. Atty. Gen. 618a-2), and out-of-state authority, all supporting a general rule that absent a statutory provision to the contrary, an incumbent may continue to perform duties as a de facto officer until a successor qualifies.

Background and statutory framework

The Suburban Hennepin Regional Park District is the regional park system serving Hennepin County outside of Minneapolis. Its governing board is set out in Minn. Stat. § 383B.68.

• Subdivision 2 (in 1993): two commissioners appointed by the Hennepin County Board of Commissioners, four-year terms, must be residents of the park reserve district.
• Subdivision 3 (in 1993): five elected commissioners, four-year terms, "and until a successor is elected and qualifies" (express holdover language for elected commissioners).

Section 383B.69 set up the initial transition and aligned appointed terms to a staggered schedule expiring on January 1 of odd-numbered years.

Before 1985, subdivision 2 referred to commissioners appointed by the Minneapolis Park and Recreation Board (with terms tied to their underlying Minneapolis Park Board terms) and included an "until a successor is appointed and qualified" phrase. The 1985 reorganization, Act of June 28, 1985, 1st Spec. Sess., ch. 14, art. 22, deleted that phrase as part of moving the appointment authority from the Minneapolis Park Board to the Hennepin County Board.

The AG opinion connected three legal threads:
1. The 1985 amendment's deletion of the holdover phrase did not reflect a legislative judgment that no holdover was allowed; the deletion was incidental to the restructuring of the appointment source.
2. Minnesota cases (Van Cleve, Smallwood, Woodbridge) and out-of-state authority (Watson, Reed) support a default de facto holdover rule absent contrary statute.
3. Section 383B.69 fixed an expiration date of January 1, and reading the four-year term to run from the actual appointment would destroy the legislatively designed staggered rotation.

Citations and references

Statutes:
- Minn. Stat. § 383B.68 (Suburban Hennepin Regional Park District board)
- Minn. Stat. § 383B.68, subd. 2 (appointed commissioners)
- Minn. Stat. § 383B.68, subd. 3 (elected commissioners)
- Minn. Stat. § 383B.69 (transitional/staggered terms)
- Act of June 28, 1985, 1st Spec. Sess., ch. 14, art. 22, 1985 Minn. Laws at 2470-71

Cases:
- Van Cleve v. Wallace, 216 Minn. 500, 13 N.W.2d 467 (1944)
- Woodbridge v. City of Duluth, 121 Minn. 99, 140 N.W. 182 (1913)
- Smallwood v. Windom, 131 Minn. 401, 155 N.W. 629 (1915)
- State ex rel. McCarthy v. Watson, 132 Conn. 518, 45 A.2d 716 (1946)
- Reed v. President and Comm'r of Town of North East, 172 A.2d 536 (Md. App. 1961)

Other AG opinions referenced:
- Op. Atty. Gen. 618a-2, February 6, 1959 (University of Minnesota Regents)
- Op. Atty. Gen. 618a-2, March 8, 1965 (Regents term expiration on fixed schedule)

Treatise:
- McQuillan, Municipal Corporations § 12.105 (3d ed.)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/330c3-19930104.pdf

Original opinion text

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

PARKS: BOARDS: HENNEPIN COUNTY: TERMS OF MEMBERS: Terms of members appointed by county board expire on January 1. They may continue in de facto capacity until successors are selected. Minn. Stat. §§ 383B.68, 383B.69 (1990).

January 4, 1993

Jeffrey R. Brauchle
Attorney for Suburban
Hennepin Regional Park District
Oppenheimer, Wolff & Donnelly
Plaza VII
45 South Seventh Street
Suite 3400
Minneapolis, MN 55402

In your letter to the office of the Attorney General you set forth substantially the following:

FACTS

Minn. Stat. § 383B.68 states that the board of park district commissioners shall consist of seven commissioners, five of whom are elected and two of whom are appointed by the board of commissioners of Hennepin County.

On January 17, 1989, one of the two appointed park district commissioners was unanimously reappointed to serve on the Suburban Hennepin Regional Park Board. Although Minn. Stat. § 383B.69 states that the appointee was to serve until January 1, 1989, his reappointment was not made until January 17, 1989. Pursuant to Minn. Stat. § 383B.68, each appointed park district commissioner shall serve a "four-year term."

You then ask substantially the following:

QUESTION ONE

May the appointed commissioner holdover after his term expiration date until a successor is appointed and qualifies?

OPINION

In our view, an incumbent may continue to serve as a de facto member following expiration of their term until a successor is appointed. The statutory sections for replacing commissioners of the Suburban Hennepin Regional Park District are found in Minn. Stat. § 383B.68 (1990) and Minn. Stat. § 383B.69 (1990). The procedures for replacements for appointed commissioners are as follows:

Subd. 2. Two park district commissioners shall be appointed by the board of commissioners of Hennepin County. An appointee must be a resident of the Hennepin county park reserve district in order to qualify and serve as a park district commissioner. Each park district commissioner appointed pursuant to this subdivision shall serve a four-year term. If a vacancy occurs among the commissioners appointed pursuant to this subdivision, the board of commissioners of Hennepin county shall appoint a successor.

There is no express statutory holdover provision with respect to appointed commissioners. In contrast, Minn. Stat. § 383B.68, subd. 3, which sets the procedures for elected commissioners includes a holdover provision:

Each park district commissioner elected pursuant to this subdivision shall be a resident of the district represented and shall serve for a term of four years and until a successor is elected and qualifies . . . .

It appears that, as part of a comprehensive rewriting of subdivision 2, the legislature in 1985 deleted the phrase "and until a successor is appointed and qualified." See Act of June 28, 1985, 1st Spec. Sess., ch. 14, art. 22, 1985 Minn. Laws at 2470-71.

Thus, a reading of subdivision 2 in contrast with subdivision 3 might suggest that there is intended to be no holdover for the appointed commissioners. However, it is our opinion that the statute should not be so construed. It appears that the deletion of the holdover language was intended to address the change from membership including city park commissioners whose terms had been fixed to coincide with their terms on the city board to commissioners appointed at large for a fixed term, rather than expressly to preclude any holding over.

Even without an express provision for formally extending the term, we believe that existing members can continue to act in their positions until successors are in place. This position is supported by case law in Minnesota in which courts have, in other contexts, recognized that public interest be taken into consideration in deciding whether officers may continue to perform the duties of office after the expiration of their terms.

In Van Cleve v. Wallace, 216 Minn. 500, 13 N.W.2d 467 (1944), the court held that the past president of the city council should continue in office until the council elected a new president. The court listed several factors as to why the incumbent president should hold over: respondent had taken the oath of office prior to the expiration of his term, there was no actual break between his two terms, and the council was evenly divided and unable to elect a successor to him. Van Cleve, 216 Minn. 500, 515, 13 N.W.2d at 472.

The court also stated that their decision best serves and protects the interest of the people of Minneapolis. The court quoted from a previous case wherein they stated that:

[I]t is undesireable and out of accord with judicial determination, from the earliest times, that any interregnum should be allowed to exist in the transition of forms of government or change of officers . . . . Questions involving government must not be determine along technical lines. Practical and broad considerations should control.

Woodbridge v. City of Duluth, 121 Minn. 99, 102, 140 N.W. 182, 183 (1913).

Similarly, although the court held that a holdover provision which allowed a clerk of court to hold over for seven years and two months was unconstitutional, the court in Smallwood v. Windom, 131 Minn. 401, 406, 155 N.W. 629, 631 (1915), stated that their decision should not be used to infer that "one in office for a definite term without a hold over provision may not, upon the occurrence of a vacancy, continue to perform the duties of his office until action by the appointing power." The court reasoned that "there is still a de jure office and in the interest of the public service it may be that the incumbent should continue the performance of his duties."

The apparent distinction which has been made is between officers holding over in de facto or de jure status. This distinction was discussed in Op. Atty. Gen. 618a-2, February 6, 1959, wherein we concluded that Regents of the University of Minnesota, whose terms had expired, served as de facto officers until successors were selected. We there followed the reasoning of the Connecticut court in State ex rel. McCarthy v. Watson, 132 Conn. 518, 45 A.2d 716 (1946):

If, by constitutional provision or valid statute, a definite term is established for an office without provision that the incumbent shall continue in office after its expiration, he will, in holding over, be a de facto and not a de jure officer, and a vacancy will result which may be filled by the appointment, under proper authority, of a successor. If, however, the term of office is not only for a definite time but until a successor is appointed and qualified, an incumbent holding over is a de jure officer and unless, from the particular language of the statute or the particular circumstances of the case, a different legislative intent appears, there is no vacancy in the office within a provision authorizing an appointment in such a contingency.

Id. 45 A.2d at 720-21.

It might be argued that, inasmuch as the status of de facto officer, by technical definition, is not based upon direct statutory authority, it should not be said that such officers are in any sense legally authorized to continue in office after the expiration of his or her term. However, the foregoing authorities appear to go beyond mere tolerance of unauthorized tenure to suggest that such incumbents may, and in some circumstances should, continue to perform the assigned duties until a successor is available.

Other jurisdictions as well have supported the notion that incumbents may hold over in de facto status absent provisions to the contrary. See McQuillan, Municipal Corporations, § 12.105 (3d Ed.). Under this policy, an elected or appointed officer may remain in office after the expiration of its term until a successor qualifies, whether or not this is provided by the statute creating the office.

For example, a Maryland court has stated that:

The controlling, if not the sole, consideration has been that the law requires, in the public interest, that the offices be filled at all times, without interruption, and to this end the intention and understanding that incumbents shall hold until their successor qualify has grown up and taken position as part of the law.

Reed v. President and Comm'r of Town of North East, 172 A.2d 536, 542 (Md. App. 1961).

Consistent with this generally held view that incumbent officers may hold over, and absent a statutory or constitutional provision to the contrary, it is our opinion that commissioners appointed pursuant to Minn. Stat. § 383B.68, subd. 2, should be allowed to continue to perform the duties of office until a successor is appointed and qualifies.

You then ask substantially the following:

QUESTION TWO

Does the appointed commissioner's four-year term expire on January 1, 1993 or January 17, 1993?

OPINION

In our opinion, the appointed commissioner's four-year term expires on January 1, 1993. The specific provision of Minn. Stat. § 383B.68, subd. 2, standing alone would suggest that the appointee should serve a four-year term measured from the time of appointment. However, Minn. Stat. § 383B.69 which establishes the initial transition to the current Board structure indicates an intent to establish and maintain a staggered rotation of appointed terms, expiring on January 1 of each odd-numbered year. This rotation would ultimately be destroyed, however, if each member appointed would serve for four years from his or her actual appointment date. Consequently, it is our view that the terms technically expire on January 1.

Very truly yours,

HUBERT H. HUMPHREY III
Attorney General

KENNETH E. RASCHKE JR.
Assistant Attorney General

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