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AGO 1990 No. 2 - March 09, 1990
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

APPOINTMENT ‑- RESIGNATION ‑- OFFICES AND OFFICERS ‑- DEPARTMENT OF WILDLIFE ‑- GOVERNOR ‑- LEGISLATURE

1.  When the Governor appoints a Director of Wildlife pursuant to RCW 43.17.020, to serve at the pleasure of the Governor, and notifies the Senate as required by RCW 43.06.030, the Governor has exercised the power of appointment.  The appointment is complete and effective unless the Senate rejects the appointment pursuant to RCW 43.06.092.

2.  If there is a vacancy in the office of Director of Wildlife, RCW 43.17.040 allows the Governor to make a temporary appointment by either leaving the chief assistant in charge of the department or appointing an acting director.  RCW 43.17.020 prohibits the Governor from leaving such a temporary appointee in charge of the Department of Wildlife for more than one year.

3.  If a Director of Wildlife, who is not a temporary director and has not been rejected by the Senate, resigns the office, the Governor may immediately reappoint the same individual to that office.

 - - - - - - - - - - - - -

 

                                                                   March 9, 1990

 

Honorable Jack Metcalf
State Senator
10th District
Institutions Building
Olympia, Washington 98504

                                                                                                                   Cite as:  AGO 1990 No. 2

Dear Senator Metcalf:

            By letter previously acknowledged, you have asked our opinion on the following two questions which we paraphrase as follows:

                        1. Where a temporary Director of Wildlife has been appointed by the Governor, pursuant to RCW 43.17.020 and 77.04.080, and the Senate does not confirm the appointment, does the office automatically become vacant upon the passage of one year?

             [[Orig. Op. Page 2]]

                        2. When an individual has resigned from the office of Director of Wildlife, may the Governor immediately reappoint the same individual to that office?

            We answer your questions in the manner set forth in our analysis:

                                                                BACKGROUND

            Your questions concern the nature of a gubernatorial appointment that, while subject to confirmation by the Senate, nevertheless, serves at the pleasure of the Governor.  The appointment of the Director of Wildlife is governed by RCW 43.17.020.  This statute was first enacted in 1921.  Laws of 1921, ch. 7, § 3, p. 12.  At that time the Director of the Department of Fisheries and Game was appointed by the Governor, with the consent of the Senate, to hold office at the pleasure of the Governor.  Id.  In 1933 the Department of Fisheries and Game was divided into two separate departments ‑- the Department of Fisheries and the Department of Game.  Laws of 1933, ch. 3, § 1, p. 24.  However, the Director of Game continued to be appointed by the Governor, with the consent of the Senate, to serve at the Governor's pleasure.  Laws of 1933, ch. 3, § 2, p. 25.

            In 1967 the power to appoint the Director of Game was removed from the Governor and placed with the Game Commission.  Laws of 1967, ch. 242, § 13, p. 1340.  In 1987 the Department of Game was renamed the Department of Wildlife.  Laws of 1987, ch. 506, § 2, p. 2308.  The legislature also amended RCW 43.17.020 with regard to the appointment of the Director of Wildlife.  The amendments in pertinent part state:

                        There shall be a chief executive officer of each department to be known as: . . . (6) the director of ((game)) wildlife, . . . .

                        Such officers, except the secretary of transportation ((and the director of game)), shall be appointed by the Governor, with the consent of the senate, and hold office at the pleasure of the governor:  PROVIDED, That the director of wildlife shall be appointed according to the provisions of RCW 77.04.080.  If a vacancy occurs while the senate is not in session, the governor shall make a temporary appointment until the next meeting of the senate.  A temporary director of wildlife shall not serve more than one year.  The secretary of transportation shall be appointed by the transportation commission as prescribed by RCW 47.01.041((, and the director of game shall be appointed by the game commission)).

             [[Orig. Op. Page 3]]

Laws of 1987, ch. 506, § 3, p. 2308.1/

             The amendments made three basic changes.  First, the Director of Wildlife is once again appointed by the Governor, with the consent of the Senate, to hold office at the pleasure of the Governor.

            Second, the Director of Wildlife is to be appointed in consultation with the Wildlife Commission in accordance with the provisions of RCW 77.04.080.  This statute was also amended in 1987 and in pertinent part provides as follows:

                        Persons eligible for appointment by the governor as director shall have practical knowledge of the habits and distribution of wildlife.  The governor shall seek recommendations from the commission on the qualifications, skills, and experience necessary to discharge the duties of the position.  When considering and selecting the director, the governor shall consult with and be advised by the commission.

Laws of 1987, ch. 506, § 9, p. 2312.2/

             Third, the amendments provided that a temporary Director of Wildlife shall not serve more than one year.

            While your questions call for an opinion interpreting Washington law in the abstract, we understand that they arise specifically from the appointment of the present Director of Wildlife, Curtis G. Smitch.  Accordingly, we conclude our background discussion by briefly summarizing our understanding of the chronology of this appointment.

            Mr. Smitch was appointed Director of Wildlife by the Governor pursuant to RCW 43.17.020 on June 10, 1988.  1 Senate Journal, 51st Legislature (1989) at 32.  In June 1988, Mr. Smitch also completed the standard questionnaire for gubernatorial appointees required by Senate Rule 68.  1 Senate Journal, 50th  [[Orig. Op. Page 4]] Legislature (1987) at p. 22.3/

            The Governor transmitted notice of the appointment along with pertinent information regarding the appointee to the Secretary of the Senate within 14 days as required by RCW 43.06.030.  On January 9, 1989 the nomination was referred to the Committee on Environment and Natural Resources.  1 Senate Journal, 51st Legislature (1989) at p. 32.

            On April 6, 1989 Mr. Smitch resigned from the office of Director of Wildlife.  2 Senate Journal, 51st Legislature (1989) at 2971.  On April 7, 1989 the Governor reappointed Mr. Smitch to this office.  Id.  The Governor again notified the Senate and provided pertinent information about the appointee as required by RCW 43.06.030.  The appointment was referred to the Committee on Environment and Natural Resources.  Id.  The Senate has not acted on either of the appointments and Mr. Smitch continues to occupy the office of Director of Wildlife.

                                                                     ANALYSIS

            With this background in mind we turn to our analysis.  Your first question is:

            Where a temporary Director of Wildlife has been appointed by the Governor, pursuant to RCW 43.17.020 and 77.04.080, and the Senate does not confirm the appointment, does the office automatically become vacant upon the passage of one year?

            The general rule in Washington, unless otherwise provided by statute, is that the appointment of an executive officer, within the Governor's power of appointment, is complete upon action by the Governor even when the appointment is subject to consent of the Senate.4/

            The last act of the Governor in making the  [[Orig. Op. Page 5]] appointment is to forward the name of the appointee to the Senate for its consideration.  The appointment is complete and effective unless and until the Senate takes positive action to reject the appointment.

            Our office has issued numerous opinions reaching this conclusion.  For example, in AGLO 1973 No. 33 we stated:

                        It is well settled by now that in this state the governor's act of appointment entitles the appointee to assume office immediately and perform the functions thereof, subject only to the possibility of later divestment by senatorial rejection.

            See also AGLO 1981 No. 10 which discusses the same principles in the context of community college boards of trustees.  Copies of both opinions are enclosed for your reference.

            There is also judicial precedent for this conclusion.  InBiggs v. Dep't of Retirement Sys., 28 Wn. App. 257, 622 P.2d 1301 (1981), the Court of Appeals described the respective functions  [[Orig. Op. Page 6]] of the Governor and the Senate in connection with gubernatorial appointments subject to confirmation of the Senate.

                        Confirmation of an appointment to a public office is to be distinguished from the appointment itself, for in confirming the appointment, the Senate does not in any sense choose the appointee. . . .

                        To say that confirmation by one branch of the legislature, the Senate, is equivalent to an appointment vested in the legislature would be an impermissible distortion of the plain meaning of the constitution.  Ordinarily, the word "appoint," merely means to name or designate some person to hold an office.  In the exercise of its "advice and consent" the Senate has only the negative power to reject such appointment.

28 Wn. App. at 260-1 (citations omitted).

            The legislature codified this rule in 1981 when it adopted RCW 43.06.092.  Laws of 1981, ch. 338, § 2, p. 1585.  This statute provides in part:

                        (1) Any gubernatorial appointee subject to senate confirmation shall continue to serve unless rejected by a vote of the senate.

            In adopting RCW 43.06.092 the legislature made a specific policy choice to continue the long-established common practice in Washington that the Governor's appointee serves unless rejected by the Senate.  However, there was substantial debate about whether this practice should be changed.

            RCW 43.06.092 was introduced in the Senate as Senate Bill No. 3000.  1 Senate Journal, 47th Legislature (1981) at 23.  As introduced, Senate Bill No. 3000 adopted a different rule for confirming appointments:

                        (1) Any gubernatorial appointee subject to senate confirmation, appointed during a legislative session or in the interim thereafter, shall not continue to serve beyond the adjournment of the next regular legislative session unless confirmed by the senate.  An appointee failing to be confirmed shall not be reappointed to the same position for a period of one year from termination of service.

Senate Bill 3000, § 2.  State of Washington Printed Bills of the Legislature, 47th Session, Senate, 3000-3149 (1981-82).  This  [[Orig. Op. Page 7]] provision was contained in the version of Senate Bill 3000 that passed the Senate.  1 Senate Journal, 47th Legislature (1981) at 610, 639.

            In the House section 2 of Engrossed Senate Bill No. 3000 was amended to read as follows:

                        (1) Any gubernatorial appointee subject to senate confirmation shall continue to serve unless rejected by a vote of the senate.  An appointee who is rejected by a vote of the senate shall not be reappointed to the same position for a period of one year from termination of service.

House Journal, 47th Legislature (1981) at 1022.  Engrossed Senate Bill No. 3000, containing the House amendment, was passed by the House and returned to the Senate.  Id.

            The Senate on two occasions refused to concur with the House amendment and asked the House to recede therefrom.  2 Senate Journal, 47th Legislature (1981) at 1976-8, 2165-7.  On two occasions the House refused to recede from the amendment and asked the Senate to concur.  House Journal, 47th Legislature (1981) at 1427, 1449.  Finally, the Senate agreed to the House amendment and adopted the language present in RCW 43.06.092.  2 Senate Journal, 47th Legislature (1981) at 2324-5.

            The difference between the House and Senate versions is illustrated by the following colloquy on the Senate floor.

                                                            POINT OF INQUIRY

            Senator Hurley:  "Senator Talmadge, If a Senate committee considers a gubernatorial appointment and if that committee either rejects or fails to get the appointment out of committee, would that be considered . . . could that action or lack of action, if I could go back to it, if the committee rejects the appointment, or if the committee fails to get the appointment out of committee, could that be considered Senate action on the gubernatorial appointment?"

            Senator Talmadge:  "Senator, my understanding of the bill would be if the nomination did not come out of the committee, there would be no Senate confirmation and therefore under the bill as it was originally adopted, the person would not be confirmed.  And their appointment would expire.  With the amendment, that would not be true, however."   [[Orig. Op. Page 8]] 2 Senate Journal, 47th Legislature (1981) at 2166.  Thus, under the provisions of RCW 43.06.092 the general proposition is that a gubernatorial appointee, including a Director of Wildlife, appointed pursuant to RCW 43.17.020 is permitted to serve unless rejected by the Senate.

            We have discussed the applicability of the general rule in RCW 43.06.092 at some length because as we will subsequently explain, we do not believe that the language added to RCW 43.17.020 in 1987 alters the application of the general rule of RCW 43.06.092.

            Your question focuses on who is a "temporary Director of Wildlife" since the provision of RCW 43.17.020 states that a "temporary director of wildlife shall not serve more than one year."  However, as we will subsequently note, the present Director of Wildlife was not a "temporary appointment," within the meaning of RCW 43.17.020, for the Governor designated him as Director and completed the appointment process by notifying the Senate within 14 days as required by RCW 43.06.030.

            The concept of a temporary appointment to the office of Director of Wildlife did not originate with the 1987 amendment to RCW 43.17.020.  As we pointed out in our background discussion, RCW 43.17.020 was originally enacted in 1921.  Laws of 1921, ch. 7, § 3, p. 12.

            The 1921 law was a major reorganization of state government known at the time as the "Administrative Code."  Laws of 1921, ch. 7, § 1, p. 12.  The concept of the "temporary appointment" was part of the original 1921 law which provided in part:

                        There shall be a chief executive officer of each of the departments of the state government created by this act, to be known respectively as . . .  (10) The director of fisheries and game; who shall be appointed by the governor with the consent of the senate and hold office at the pleasure of the governor:  Provided, That, if the senate be not in session when this act takes effect, and in case a vacancy occurs while the senate is not in session, the governor shall make a temporary appointment until the next meeting of the senate, when he shall present to the senate his nomination for the office.

Laws of 1921, ch. 7, § 3, p. 12 (emphasis added).

            The term "temporary appointment" was not defined in the 1921 act nor has the legislature provided a definition during the intervening years.  In construing any statute we should attempt to give effect to the plain meaning of the words the legislature  [[Orig. Op. Page 9]] has used.  State v. Summerville, 111 Wn.2d 524, 531, 760 P.2d 932, 936 (1988).  In determining the usual and ordinary meaning of a word, it is proper to turn to dictionaries for assistance.  On many occasions the Washington Supreme Court has referred to Webster's Third New International DictionarySee Marino Property Co. v. Port of Seattle, 88 Wn.2d 822, 833, 567 P.2d 1125, 1131 (1977).

            Webster's Third New International Dictionary defines the term "temporary" as follows:

            1/Temporary . . . la:  lasting for a time only:  existing or continuing for a limited time:  IMPERMANENT, TRANSITORY . . .

            2/Temporary . . . someone or something serving for a limited time only . . .

Webster's Third New International Dictionary, 2353 (1981).5/

             Although the 1921 law did not define the term "temporary appointment" it did provide two kinds of appointments that were, by their nature, impermanent, transitory and lasting for a time only.

            After provisions establishing the various departments of state government including the Department of Fisheries and Game (Laws of 1921, ch. 7, § 107, p. 58) the 1921 law provided:

                        The director of each of the departments of the state government created by this act shall have the power, from time to time, to designate and deputize one of the assistant directors of his department to act as, and to be, thechief assistant director, who shall have charge and general supervision of the department in the absence of, or in case of the disability of, the  [[Orig. Op. Page 10]] director, and who shall, in case a vacancy occurs in the office of director, continue in charge of the department until a director is appointed and qualified, or the governor shall appoint an acting director.

Laws of 1921, ch. 7, § 118, p. 61 (emphasis added).  This provision is now codified as RCW 43.17.040 and it has not been amended since it was enacted in 1921.

            Logically the phrase "temporary appointment" refers to the situation in which a chief assistant or acting director assumes control of an agency when the office of director is vacant.  Designation of a chief assistant or acting director is, by its very nature, a temporary appointment awaiting the Governor's action to fill the vacancy on a permanent basis.  A vacancy is filled on a permanent basis when the Governor completes the exercise of the appointment power by notifying the Senate of the appointment.

            The 1921 act required the Governor to report his permanent appointment, as contrasted with a temporary filling of a position with an acting director, when the Senate was next in session.  However, in 1981 RCW 43.06.030 was amended (Laws of 1981, ch. 338, § 2, p. 1585) to require the Governor to report to the Senate within 14 days of making an appointment that is subject to confirmation.  The Governor is required to notify the Secretary of the Senate and must report even if the Senate is not in session.  An individual serving in a temporary capacity, while the Governor takes a reasonable time to make a "permanent" appointment, is not an appointment subject to confirmation under RCW 43.17.020.

            This interpretation of the term "temporary appointment" is consistent with the rule of statutory construction that an "act must be construed as a whole, considering all provisions in relation to each other and, if possible, harmonizing all to insure proper construction of each provision."  In re Piercy, 101 Wn.2d 490, 492, 681 P.2d 223, 225 (1984).

            This is also consistent with the history of the 1987 amendments that authorize the Governor to appoint the Director of Wildlife.  The 1987 amendments began as House Bill No. 758.  1 House Journal, 50th Legislature (1987) at 177.  House Bill No. 758 would have required the Governor to select the Director of Wildlife from a list of five candidates submitted by the Wildlife Commission.  However, the Wildlife Commission was required to provide additional names if requested by the Governor.  House Bill No. 758, § 7.  State of Washington Printed Bills of the Legislature (State Bills), 50th Session, House, 756-810 (1987-88).  The limitation that a "temporary director of  [[Orig. Op. Page 11]] wildlife shall not serve more than one year" did not appear in the original version in this bill.  House Bill No. 758, § 2.  Id.

            The House Committee on Natural Resources proposed Substitute House Bill No. 758 and recommended passage of the substitute bill.  1 House Journal, 50th Legislature (1987) at 339-40.  The substitute bill required the Governor to "select the director from a list of at least three candidates agreed to by the governor and the commission."  Substitute House Bill No. 758, § 9.  State Bills (1987-88).  The substitute bill also included, for the first time, the limitation that a "temporary director of wildlife shall not serve more than one year."  Substitute House Bill 758, § 3.  Id.

            The substitute bill restricted the Governor's appointment power to three candidates agreed to by the Governor and the Wildlife Commission.  The one‑year limitation on the appointment of a "temporary" Director of Wildlife thus prevented the Governor from appointing an "acting director" as a means of avoiding the need to agree on three candidates with the Wildlife Commission.  Such a person,i.e., a temporary director awaiting the concurrence of the Governor and the Wildlife Commission, would clearly have been temporary because the agreement required for a "permanent" appointment would not yet have been achieved.  It would be difficult to characterize a Wildlife Director as temporary if the director was appointed by the Governor from a list of three candidates agreed to by the Governor and the Wildlife Commission, and the Governor had notified the Senate of the appointment.  The one‑year limitation was only with reference to a temporary director, hence, if the director was not temporary the limitation did not apply.

            The one‑year limitation on the appointment of a temporary Director of Wildlife was part of all subsequent versions of House Bill 758.6/

            The requirement for consultation with the Wildlife Commission changed.  The bill ultimately passed by the House merely required the Governor to consult with the Wildlife Commission.  Engrossed Second Substitute House Bill 758, § 9.  State Bills (1987-88).  The bill passed by the Senate required the Governor to select the Director of Wildlife from a list of three candidates submitted by the Wildlife Commission.  Engrossed  [[Orig. Op. Page 12]] Second Substitute House Bill 758 (as adopted by the Senate, 4/24/87), § 9.  Id.  The bill finally passed by the legislature and signed by the Governor contained the language in the House version.  Engrossed Second Substitute House Bill No. 758 (as amended by the Free Conference Committee) § 9.  Id.

            The House version put the least restrictions on the Governor's appointment power, for it only required consultation with the Wildlife Commission.  The Senate version was the most restrictive, for it required the Governor to choose from a list of three candidates submitted by the Wildlife Commission.  Both versions contained the one‑year limitation on the appointment of a temporary Director of Wildlife.  Since the one‑year limitation was in both versions, it does not appear that the limitation was part of a compromise between the House and Senate over the level of consultation required between the Governor and the Wildlife Commission.

            Also, since the one‑year limitation on a temporary Director of Wildlife was in both bills, it should logically have the same meaning in both versions of the bill.  If the Senate version had become law, it would not be logical to characterize a Director of Wildlife as temporary if the director was appointed by the Governor, from a list of three candidates submitted by the Wildlife Commission, and the Senate was notified of the appointment.  By the same token, it is not logical to characterize a Director of Wildlife as temporary if the director is appointed by the Governor, after consulting with the Wildlife Commission, and the Senate is notified of the appointment.

            In 1988 when a vacancy occurred in the office of Director of Wildlife, the Governor could have exercised his authority, under RCW 43.17.040, to leave the chief assistant in charge of the department or appoint an acting director.  If the Governor had followed this course of action he would not have exercised his power to appoint the Director of Wildlife under RCW 43.17.020.  Therefore, in that scenario the Governor would not have been under an obligation to notify the Senate of his appointment within 14 days pursuant to RCW 43.06.030.

            The temporary appointment of the chief assistant or an acting director eliminates what would otherwise be a void in leadership of the department while the Governor takes the time necessary to select a "permanent" appointee.  This may be particularly important with respect to the office of the Director of Wildlife since the Governor makes the appointment in consultation of the Wildlife Commission pursuant to RCW 77.04.080.

            Once the Governor makes the "permanent" appointment the Senate must be notified under RCW 43.06.030.  In that situation  [[Orig. Op. Page 13]] the Governor has exercised the appointment power and the appointee assumes office, subject to the power of the Senate to reject the appointment.

            In our judgment the phrase in RCW 43.17.020 that a "temporary director of wildlife shall not serve more than one year" is a limit on the Governor's power to leave a chief assistant in charge of the Department of Wildlife or to appoint an acting Director of Wildlife.7/

            RCW 43.17.020 prohibits the Governor from leaving a temporary appointee in charge of the Department of Wildlife for over a year.  The statute puts a maximum time limit on the consultation between the Governor and the Wildlife Commission before the Governor makes his "permanent" appointment (at the Governor's pleasure‑-subject to rejection by the Senate).  However, this limitation does not apply to one appointed to fill on a "permanent" basis the office of Director of Wildlife.

            It has been suggested that the word "temporary" in RCW 43.17.020 refers to any appointment made by the Governor when the Senate is not in session even if the appointment is submitted to the Senate pursuant to RCW 43.06.030.  However, this view is in conflict with our consistent interpretation of the Governor's appointment power.  Once the Governor has made an appointment and submitted the appointee's name to the Senate, the Governor has exhausted the appointment power.  At that time the appointment is complete.  As we stated in AGLO 1981 No. 10:

                        [O]nce the Governor has made an appointment which is subject to Senate confirmation and has submitted the appointee's name to the Senate, neither he nor his successor may thereafter unilaterally withdraw the name thus submitted and submit a new one in its place.

(Emphasis in original.)

             [[Orig. Op. Page 14]]

            Under our prior opinions a completed gubernatorial appointment is not temporary.  An appointment is not a temporary appointment solely because it is made when the Senate is not in session.  Rather, an appointment is temporary if the Governor has not completed the appointment process by submitting the appointee's name to the Senate.  RCW 43.06.030 requires the Governor to notify the Secretary of the Senate within fourteen days after making any appointment subject to Senate confirmation.  The Governor must comply with this provision even if the Senate is not in session.  Once the Governor completes the appointment process by complying with this provision the appointment is permanent and the vacancy is filled.  The Governor cannot make another appointment to the position unless a vacancy is created‑-either by the Governor securing a person's resignation, removing one who serves at the Governor's pleasure, or by removing for cause an appointee who has some form of tenure (or if the Senate rejects the appointment).

            On the other hand, if the Governor appoints an "acting director" he does not submit the name to the Senate and he has not completed the appointment process.  In this situation a vacancy still exists and the Governor is free to fill the vacancy simply by making the appointment and submitting the appointee's name to the Senate.  For these reasons we conclude that an appointment is not temporary simply because it is made while the Senate is not in session.

            We have reviewed the chronology of the appointment of the present Director of Wildlife set out in our background discussion.  Mr. Smitch was not a temporary appointee because he was not a chief assistant in charge of the Department of Wildlife; he was not appointed acting director; and the Secretary of the Senate was notified of his appointment as Director of Wildlife pursuant to RCW 43.06.030.  With regard to Mr. Smitch's first appointment on June 10, 1988 the Senate Journal states:

!tp1,1   June 10, 1988          

            TO THE HONORABLE, THE SENATE OF THE STATE OF WASHINGTON.

            Ladies and Gentlemen:

                        I have the honor to submit the following appointment subject to your confirmation.
                        Dr. Curt Smitch, appointed June 10, 1988 for a term ending at the Governor's pleasure, as Director of the Department of Wildlife.

             [[Orig. Op. Page 15]]

                                    Sincerely,  

                                    BOOTH GARDNER
           
            Governor

1 Senate Journal, 51st Legislature (1989) at 32.  With regard to the second appointment, the Senate Journal states:

!tp1,1   April 7, 1989

            TO THE HONORABLE, THE SENATE OF THE STATE OF WASHINGTON

            Ladies and Gentlemen:
                        I have the honor to submit the following appointment, subject to your confirmation.
                        Dr. Curtis G. Smitch, appointed April 7, 1989, for a term ending at the Governor's pleasure, as Director of the Department of Wildlife.
                        Pertinent information regarding Dr. Smitch was forwarded to you following his previous appointment to the office of Director of the Department of Wildlife on June 10, 1988.  A copy of the completed Senate standard questionnaire is enclosed.
                        When I first appointed Dr. Smitch as Director of the Department of Wildlife, I intended that his, like the chief officers of other executive departments, would continue to serve at the Governor's pleasure unless rejected by the Senate.  Because Dr. Smitch was appointed as a permanent director, I transmitted notice of the appointment to the Secretary of the Senate.  Some asserted that, because Dr. Smitch was appointed while the Senate was not in session, he served as a "temporary" director.  A temporary director of Wildlife may not serve more than one year.

                        On April 6, 1989, Dr. Smitch submitted his resignation from the position to which he was appointed on June 10, 1988.  I have consulted and been advised by the Wildlife Commission regarding the appointment of a Director of Wildlife which would follow if Dr. Smitch submitted his resignation. The Commission was unanimous in its support for the appointment of Dr. Smitch.  On April 7, 1989, I appointed Dr. Smitch as the permanent Director of the Department of Wildlife.   [[Orig. Op. Page 16]]  This appointment is made at a time when the Senate is in session.  Accordingly, Dr. Smitch shall continue to serve at the pleasure of the Governor unless rejected by a majority vote of the full Senate.

                       !tp1,1  Sincerely,

                                   BOOTH GARDNER,

            Governor

2 Senate Journal, 51st Legislature (1989) at 2971.

            The general rule is that the appointment of an executive officer is complete upon the last act of the Governor in making the appointment.  In this case the last act was notifying the Senate of the appointment of Mr. Smitch as Director of Wildlife as required by RCW 43.06.030.  At that time Mr. Smitch became the permanent Director of Wildlife, at the pleasure of the Governor, subject to rejection by a vote of the Senate pursuant to RCW 43.06.092.

            RCW 43.17.020 does limit the power of the Governor to appoint a temporary Director of Wildlife, that is, a chief assistant or acting director in charge of the department.8/

            Since Mr. Smitch was neither a chief assistant in charge nor an acting director and his appointment was submitted to the Senate pursuant to RCW 43.06.030, the provisions of RCW 43.06.092 apply.  He is entitled to serve, at the pleasure of the Governor, unless rejected by a vote of the Senate.

            This brings us to your second question:
                        When an individual has resigned from the office of Director of Wildlife, may the Governor immediately reappoint the same individual to that office?

             [[Orig. Op. Page 17]]

            As we pointed out in our background discussion, at present the Director of Wildlife is appointed by the Governor with the consent of the Senate to hold office at the pleasure of the Governor.  RCW 43.17.020.  It is our opinion that once the Director of Wildlife has resigned there is no limitation on the Governor's ability to appoint him anew.9/

            We find nothing in the statutes governing the appointment of the Director of Wildlife that so limits the Governor's power.10/

             The only limitation on the Governor's power in this context occurs if the Senate rejects the appointment.  RCW 43.06.092 provides that:  "An appointee who is rejected by a vote of the senate shall not be reappointed to the same position for a period of one year from termination of service."  Of course, in this situation the Senate has not rejected the appointment of Mr. Smitch as the Director of Wildlife so the limitation in RCW 43.06.092 does not bar his reappointment.

            We also note that the Governor could have withdrawn his appointment of Mr. Smitch as Director of Wildlife without consent of the Senate since that office serves at the pleasure of the Governor.  RCW 43.06.094 provides:

                        Gubernatorial appointees subject to senate confirmation, other than those who serve at the governor's pleasure, may not be removed from office without cause by the governor prior to confirmation except upon consent of the senate as provided for by the rules of the senate.

             [[Orig. Op. Page 18]]

(Emphasis added).  RCW 43.06.094 allows the Governor a maximum of flexibility with regard to positions that serve at the Governor's pleasure and where no other statutory provisions limit the Governor's power.

            In summary, we find nothing in the statutes governing the appointment of the Director of Wildlife that would prohibit the Governor from immediately reappointing to that office an individual who has resigned.

            We trust the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

SALLY P. SAVAGE
Sr. Assistant Attorney General

WILLIAM B. COLLINS
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/To illustrate the effects of the 1987 amendments, we have set them out in bill drafting format, with added language underlined and deleted language stricken out.

2/To illustrate the effect of the amendment, we have set it out in bill drafting format, with added language underlined.

3/In 1989 the Senate adopted permanent rules for the Fifty-First Legislature.  The rule pertaining to confirmation of gubernatorial appointees is Rule 69.  The text of the rule is unchanged.  1 Senate Journal, 51st Legislature, (1989) at p. 277.

4/While we speak in terms of a "general rule" it must be applied with caution.  As you know, numerous offices in this state are filled through this process of appointment and confirmation.  However, the statutes governing these offices are by no means uniform.
            For example, members of the Gambling Commission are appointed by the Governor, with the consent of the Senate, for a specified term of office.  RCW 9.46.040.  Members of the Gambling Commission may only be removed by a tribunal composed of three superior court judges appointed by the Chief Justice of the Washington Supreme Court.  RCW 9.46.050(6).  On the other hand, members of the Horse Racing Commission serve at the pleasure of the Governor, even though they, too, are appointed by the Governor, with the consent of the Senate, for a specific term of office.  RCW 67.16.012.
            Still other officers, appointed by the Governor and approved by the Senate for a specific term, do not serve at the pleasure of the Governor.  Members of the Higher Education Coordinating Board are appointed in this manner.  RCW 28B.80.390 ‑ [28B.80].400.  These offices may be removed by the Governor for cause under the procedures established in RCW 43.06.070 ‑ [43.06].080.
            Because the statutes governing appointed office in this state are not uniform, care must be taken in applying the legal conclusions reached in connection with one particular appointed office to another appointed office governed by different statutes.

5/Although Webster's Third New International Dictionary was published in 1981 we are confident that the definition of "temporary" has not changed since 1921.  The Oxford English Dictionary not only defines words but also gives examples of historical usage.  The definition of temporary has not changed.

            Temporary . . . 1.  Lasting for a limited time; existing or valid for a time (only); not permanent; transient; made to supply a passing need.
XI The Oxford Dictionary 169 (1933).

6/See Second Substitute House Bill No. 758, § 3; Engrossed Second Substitute House Bill No. 758, § 3 (as adopted by the Senate 4/24/87); and Engrossed Second Substitute House Bill No. 758, § 3 (as amended by the Free Conference Committee).  State Bills (1987-88).

7/In the course of our research on this opinion we have been made aware of statements by individual legislators regarding the purpose of the 1987 amendments to RCW 43.17.020.  These statements were made after the passage of Laws of 1987, ch. 506 and the statements themselves are in conflict.  Legislative intent in passing a statute cannot be shown through the statements of individual legislators made subsequent to the passage of the statute.  Woodson v. State, 95 Wn.2d 257, 264, 623 P.2d 683 (1980).  Accordingly, we do not base our opinion on any of these conflicting statements.

8/The limitation on the Governor's power to appoint a temporary Director of Wildlife is a limitation on the kind of appointment, e.g., a chief assistant in charge or an acting director.  It is not a limitation on the individual occupying the office.  Thus, RCW 43.17.020 does not prohibit the Governor from appointing an individual acting Director of Wildlife and then, at a later time, appointing the same individual on a permanent basis, at the Governor's pleasure, subject to rejection by the Senate pursuant to RCW 43.06.092.

9/This question and answer are in the context of a gubernatorial appointment that has been submitted to the Senate for confirmation, i.e., a permanent appointment which has not been rejected by the Senate.  We are not suggesting that an individual designated by the Governor as a temporary director, who has therefore not been submitted to the Senate for action, could escape the one‑year limitation upon serving in that capacity by resigning and being redesignated as a temporary director.

10/Again we caution that this conclusion may not apply to other offices appointed by the Governor.  The nature of the office or specific statutory provisions may impose limitations on the Governor's power that do not apply to the Director of Wildlife.  For example, RCW 9.46.040 provides that:  "[N]o member of the [Gambling] commission who has served a full six-year term shall be eligible for reappointment."

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