February 1, 1994

ATTORNEY GENERAL OPINION NO. 94-10

Carol G. Green
Clerk, Kansas Supreme Court
Kansas Judicial Center
3rd Floor
Topeka, Kansas 66612-1507

Re:

Courts--Nonpartisan Selection of Judges of the District Court--Nonlawyer Members of District Judicial Nominating Commission; Prohibition Concerning Holding an Office

Synopsis:

A county commissioner may not be appointed to serve as a member of the district judicial nominating commission. Cited herein: K.S.A. 20-2905, K.S.A. 1993 Supp. 20-2906.

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Dear Ms. Green:

As clerk of the Supreme Court you request our opinion concerning the propriety of appointing a county commissioner to serve as a member of a district judicial nominating commission (commission). Appointments of nonlawyer members of the commission are made by the board of county commissioners. K.S.A. 20-2905. Evidently, you have encountered a situation where the board of county commissioners desires to appoint one of its members to the commission. However, K.S.A. 1993 Supp. 20-2906(a) states, in relevant part, as follows:

"No member of a district judicial nominating commission, while such member is a member, shall hold any office or official position in a political party. . . ." (Emphasis added).

It is our opinion that "or" is a disjunctive term that marks an alternative generally corresponding to "either". 82 C.J.S. Statutes sec. 335. Consequently, a member of the commission is prohibited from holding either an office or an official position in a political party.

An "office" is an employment on behalf of the government in any station or position of public trust. The term embraces the ideas of tenure, duration, emolument and duties. State v. Rose, 74 Kan. 262, 267 (1906). Additional attributes of the term "office" are found in Durflinger v. Artiles, 234 Kan. 484 (1983):

1. The public office is created by constitution, statute or under home rule power by city ordinance or county resolution;

2. The officer is able to exercise some portion of the sovereign power;

3. The office is a continuing, not occasional, position and one not based on contracts;

4. The office has a fixed term;

5. There is typically an oath requirement;

6. Officers are liable for nonfeasance or misfeasance in office; and

7. Officers have independence beyond that of employees.

There is no doubt that a member of the board of county commissioners holds public office and, consequently, it is our opinion that he or she may not be appointed to serve as a member of the district judicial nominating commission.

Very truly yours,

ROBERT T. STEPHAN
Attorney General of Kansas

Mary Feighny
Assistant Attorney General

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