Kansas Attorney General Opinion 2015-019

November 18, 2015
ATTORNEY GENERAL OPINION NO. 2015- 19
Dr. Susan Mosier, Secretary
Kansas Department of Health and Environment
1000 SW Jackson Street, Suite 540
Topeka, Kansas 66612-1367
Re: 	Constitution of the State of Kansas—Judicial—Selection of Justices of the
Supreme 	Court; 	Supreme 	Court 	Nominating 	Commission; 	Prohibition
Against Members Holding Public Office by Appointment; Prohibition Against
Holding Any Other Public Office by Appointment
Synopsis: 	A person selected by the Secretary of the Kansas Department of Health and
Environment to serve as a Deputy Secretary in the Division of Environment
does not hold a "public office by appointment," and therefore is not
prohibited from simultaneously serving as a nonattorney member of the
Supreme Court Nominating Commission. Cited herein: K.S.A. 20-119; 20-
120; 20-124; Kan. Const., Art. 3, § 5.
* 	* 	*
Dear Secretary Mosier:
You request our opinion on whether “a Deputy Secretary for Environment in the Kansas
Department of Health and Environment’s Division of Environment, with no powers or
duties authorized by statute, except those delegated by the Secretary of Health and
Environment, [can] also serve on the Supreme Court Nominating Commission.”

Dr. Susan Mosier, Secretary
Page 2
The 	Supreme 	Court 	Nominating 	Commission 	(Commission) 	is 	a 	nine-member,
nonpartisan body that is required by the Constitution of Kansas to nominate and submit
to the governor the names of three qualified persons for appointment to fill vacancies in
the office of any justice of the Kansas Supreme Court.1 	The Commission consists of a
chairperson (an attorney licensed and residing in Kansas), 2 as well as one attorney
member and one nonattorney member from each of the four U.S. congressional districts. 3
The attorney members are elected by licensed attorneys residing in their respective
congressional 	districts; 	the 	chairperson 	is 	elected 	by 	Kansas 	attorneys 	voting 	at
large. 4 The four nonattorney members are appointed by the governor.5
Constitution of Kansas, Article 3, § 5(g) provides:
No member of the supreme court nominating commission shall, while he is
a member, hold any other public office by appointment or any official
position in a political party or for six months thereafter be eligible for
nomination for the office of justice of the supreme court. The commission
may act only by the concurrence of a majority of its members.
Determinative of the issue is whether the position of Deputy Secretary of the Department
of Health and Environment is a “public office by appointment.” 6
Attorney General Robert T. Stephan concluded, in Attorney General Opinion No. 87-65,
that the public office by appointment prohibition of Article 3, § 5(g) refers to the common
law concept of the “public office” discussed in Durflinger v. Artiles.7
It may be stated, as a general rule deducible from the cases discussing the
question, that a position is a public office when it is created by law, with
duties cast on the incumbent which involve an exercise of some portion of
the sovereign power 	and in the performance of which the public is
concerned, and which also are continuing in their nature and not occasional
or intermittent. . . .8
1 Kan. Const. Art. 3, § 5(d).
2 Kan. Const. Art. 3, § 5(e) and K.S.A. 20-119.
3 Kan. Const. Art. 3, § 5(e), K.S.A. 20–120 and 20-124.
4 Kan. Const. Art. 3, § 5(e), K.S.A. 20–119 and 20–120.
5 Kan. Const. Art. 3, § 5(e) and K.S.A. 20–124.
6 Because your opinion request is only focused on the first disqualification, we limit our opinion to whether
the position of Deputy Secretary of Environment is a “public office by appointment.”
7 234 Kan. 502 (1983) reversed on other grounds, 727 F.2d 888, 10th Cir. (Kan.), Jan. 27, 1984 affirming
decision.
8 Durflinger at 502 (quoting 53 A.L.R. 595).

Dr. Susan Mosier, Secretary
Page 3
The Court also noted that a “public office" is defined as: “[a] position whose occupant has
legal authority to exercise a government's sovereign powers for a fixed period.” 	Under
Durflinger, the essential characteristics of a public office are (1) authority conferred by
law, (2) fixed tenure of office, and (3) power to exercise some portion of the sovereign
function of government.9 	We adopt General Stephan’s conclusion in 	Attorney General
Opinion No. 87-65.
We have found no statute that provides for the creation, tenure or powers and duties of
the position of Deputy Secretary in the Environment Division at the Kansas Department
of Health and Environment. 	This makes it clear that the position does not meet the
Durflinger test of public office. and if it is not a public office, it cannot be a public office by
appointment. 	We conclude that a person selected by the Secretary of the Kansas
Department of Health and Environment to serve as a Deputy Secretary in the Division of
Environment does not hold a "public office by appointment," and therefore is not
prohibited from simultaneously serving as a nonattorney member of the Supreme Court
Nominating Commission.
Sincerely,
Derek Schmidt
Attorney General
Athena E. Andaya
Deputy Attorney General
DS:AA:sb
9 Durflinger at 503, citing Black’s Law Dictionary (5th ed. 1979) definition of “public office.” Black’s Law
Dictionary (10 th ed. 2014) defines “public office” to be “[a] position whose occupant has legal authority to
exercise a government's sovereign powers for a fixed period.”