Iowa Attorney General Tom Miller issued a formal opinion Monday that if a governor resigns, the lieutenant governor becomes governor for all intents and purposes, but does not have legal authority to appoint a new lieutenant governor.

Sen. David Johnson, I-Ocheyedan, requested the opinion following Governor Terry Branstad’s announcement that, if confirmed by the U.S. Senate, he will serve as U.S. ambassador to China, according to a release.

“The lieutenant governor takes on this authority because she is lieutenant governor,” Miller wrote in his opinion. “In other words, upon a governor’s resignation, the lieutenant governor will hold both the offices of Governor and Lieutenant Governor.”

The opinion adds the acting governor does not have constitutional authority to appoint a new lieutenant governor.

“There is no vacancy to be filled,” Miller wrote in his opinion.

Iowa Secretary of State Paul Pate disagrees. 

Pate said in a release the Iowa Secretary of State’s Office reached an opinion that concurred with the Attorney General’s Office and the Office of the Governor when Branstad’s potential position as ambassador was announced. That opinion is that Reynolds would be able to appoint someone to fill the lieutenant governor position under Iowa Code 69.8, which allows a governor to appoint a lieutenant governor if there is a vacancy in that office.

“It is my position, as the State Commissioner of Elections, that both the Iowa Constitution and the Iowa Code agree that Kim Reynolds should be allowed to select a person to fill the vacancy in the Office of Lieutenant Governor upon her ascendancy to the Governor’s Office,” Pate said in a release. 

View Miller’s full opinion online here.