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AGLO 1970 No. 121 - September 28, 1970
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Slade Gorton | 1969-1980 | Attorney General of Washington
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                                                              September 28, 1970
Honorable Daniel J. Evans
Governor, State of Washington
Legislative Building
Olympia, Washington 98501
                                                                                                             Cite as:  AGLO 1970 No. 121
Dear Sir:
            You have advised us that following the recent recall of five members of the Tacoma city council, you were requested to appoint some qualified person or persons to the city council of that city in order to fill the remaining vacancies in the manner provided for in the city charter.  Before proceeding to fulfill this request, you have asked for our opinion on certain questions pertaining to your authority to do so.  Your questions are as follows:
            (1) Where five of nine members of the city council of a first class charter city (Tacoma) have been recalled under the provisions of Article I, §§ 33 and 34 (Amendment 8) of the state Constitution and chapter 29.82 RCW, and it has been determined by the city attorney of such city in an official opinion that because of the quorum requirements of that city's charter the four remaining members of the council are without authority to appoint any persons to fill the vacancies resulting from the recall, does the governor have the power under either Article III, § 13 of the Constitution or RCW 43.06.010 (2) to appoint a sufficient number of councilmen to constitute a quorum under the provisions of the city charter so as to enable the council to fill the remaining vacancies as provided therein?
            (2) If question (1) is answered in the affirmative; (a) for what period of time would the governor's appointee or appointees serve; and (b) must the person or persons appointed by the governor possess such qualifications as are required under the city charter for city councilman of the city in question?
            Before responding directly to these questions, we believe it would be well to reiterate an oft-stated policy of this office with regard to questions pertaining to the interpretation of the laws governing those cities (as well as counties) which have adopted their own charters as provided for  [[Orig. Op. Page 2]] in Article XI, §§ 4 and 10 of our state Constitution.  To the extent that questions submitted to us with respect to such municipalities have called for an interpretation of the provisions of the governing city or county charter, as distinguished from the interpretation of state statutes or constitutional provisions, we have customarily taken the position that it would be inappropriate for us to intercede in a purely local matter and attempt to render an opinion upon the meaning of the particular municipal charter provision in question.  Instead, we have stated that any advisory opinion with respect to the meaning of a municipal charter provision or ordinance should more properly be requested of, and issued by, the official legal counsel (corporation counsel, city attorney or prosecuting attorney) for the municipality involved.
            Accordingly, no attempt will be made in this opinion to "second guess" or otherwise pass upon any of the questions pertaining to the Tacoma city charter which have been covered in the recent opinion of the city attorney of Tacoma which is referred to in your first question ‑ or, for that matter, any other questions pertaining to the meaning of the Tacoma city charter provisions which have been raised by your present inquiry.  Suffice it to say, for purposes of background to our consideration of the questions which you have asked, that in this opinion the Tacoma city attorney, after reviewing a number of analogous court decisions from other jurisdictions, concluded that a substantial doubt existed as to the authority of a city council comprised of less than five members to perform the function of filling vacancies on the council as provided for in Article II, § 2.7 of the Tacoma city charter.1/   In rendering this opinion, the city attorney relied, principally, upon a provision of the city charter which states that:
             [[Orig. Op. Page 3]]
            ". . .  Five councilmen shall be a quorum for the transaction of business, but in the absence of a quorum, the members present may adjourn the meeting to a later date.  . . ."2/
             Assuming for the purposes of this opinion the correctness of the Tacoma city attorney's determination that, in effect, the four members of the Tacoma city council who remain in office following the recent recall election lack the legal capacity or authority to appoint any persons to fill the five vacancies resulting from the recall, it is our opinion that you, as governor, have the power to appoint a single qualified person to the city council in order to cause that body to be composed of a sufficient number of persons to constitute a quorum ‑ thereby to enable the council then to fill the remaining vacancies as provided for in the charter, supra.
            We base this conclusion, essentially, upon the decision of the Washington supreme court in State ex rel. Gilbert v. Dimmick, 89 Wash. 182, 154 Pac. 163 (1916), together with a subsequent opinion of this office which was written to the governor's office on October 23, 1945.  We are attaching xerox copies of both the Gilbert decision and our prior opinion for your immediate reference.
            The recall amendment to our state Constitution (Amendment 8) was approved by the people at the November 1912 state general election.  Thereafter, as provided for in § 2 of the Amendment,3/ the 1913 session of the state legislature enacted the necessary laws to carry out the provisions of the amendment and to facilitate its operation.  See, chapter 146, Laws of 1913.  Among these provisions was a statute stating that any vacancy resulting from recall of a public officer
            ". . . shall be filled in the manner provided by the constitution and the laws of the State of Washington, or the charter and ordinances of the municipality, as the case may be."4/
             Subsequently, at an election held in Yakima county on October 6, 1915, the voters of that county exercised their newly granted constitutional powers and recalled all three  [[Orig. Op. Page 4]] members of the Yakima board of county commissioners.  Following this recall election, the governor appointed two new county commissioners, who then qualified and assumed office ‑ after which they appointed a third commissioner.
            The question of the governor's authority to make the two appointments necessary to establish a quorum, so that the commission could then exercise its clear authority under Article XI, § 6 of the state Constitution to appoint a qualified person to fill the third vacancy, was then litigated in a quo warranto action.  In a unanimous en banc decision, the Washington supreme court upheld the authority of the governor to make the two appointments which he had made following the recall election.  In reaching this decision, the court cited both Article III, § 13 of the state Constitution, which provides:
            "'When, during a recess of the legislature, a vacancy shall happen in any office, the appointment to which is vested in the legislature, or when at any time a vacancy shall have occurred in any other state office, for the filing of which vacancy no provision is made elsewhere in this Constitution, the governor shall fill such vacancy by appointment, which shall expire when a successor shall have been elected and qualified.'"
            and an 1890 statute (which, notably, is still in effect) providing that:
            "'In addition to those prescribed by the constitution, the governor has the power and may perform the duties prescribed in this and the following sections: ‑-. . . (2)‑-To see that all offices are filled, and the duties thereof performed, or in default thereof, apply such remedy as the law allows; and if the remedy is imperfect, acquaint the legislature therewith at its next session.'"5/
             Then relying principally upon the statute rather than upon the Constitution, the court expressed the essence of its opinion as follows:
             [[Orig. Op. Page 5]]
            "The county commissioners of a county are the business agents of the county, and the ordinary business of a county cannot be conducted without their authorization.  It follows that when all the offices of county commissioners in a county become vacant, there is necessarily a cessation of county government, and there must be some power lodged somewhere to prevent such hiatus.  This has been done by the legislature.  The act of 1890, above referred to, provides that, in addition to the powers prescribed by the constitution, the governor has power 'to see that all offices are filled, and the duties thereof performed.'  We think it is plain that the legislature had the right to pass this act, and that, where there is no provision in the constitution for the appointment of commissioners of a county, and where a majority of the offices of the board of county commissioners become vacant, then it is within the power of the governor to fill such vacancy by appointment.  This seems so clear that it is not necessary to further inquire into the subject, or discuss decisions from other states upon the question.  We have no doubt that, under the statute of 1890, the governor was authorized to make the appointments which he did make, and that these officers are de jure officers, and are qualified county commissioners of Yakima county."
            This decision, in State ex rel. Gilbert v. Dimmick, supra, in turn became the basis for the second authority which we have cited above in support of our affirmative answer to your first question; namely, the opinion of this office to your office of October 23, 1945.  In this opinion, the then attorney general concluded that the reasoning of the Gilbert case was equally applicable to a situation which had arisen in a certain sewer district in this state.  Accordingly, it was concluded that:
            "The governor has the authority under Rem. Rev. Stat. 10982-26/ to appoint two sewer district commissioners, who will appoint the  [[Orig. Op. Page 6]] third, when no commissioners have been elected at the election held to create the sewer district."
            We have reviewed this previous opinion, and have conducted independent research on the question which was considered therein; however, we have discovered no basis for disaffirming either its reasoning or conclusion.  Therefore, based upon this opinion and upon the court's decision upon which it was predicated, our answer to your first question is in the affirmative.
            In so far as the two issues raised by sub‑parts (a) and (b) of your second question are concerned, it is to be noted and understood that the court, in the Gilbert case, characterized the governor's two county commissioner appointees as "de jure" officers ‑ meaning that they occupied their offices by right and possessed all of the powers and attributes of those offices.  See, 11 Words and Phrases, pp. 619-620.  They were not merely temporary appointees who were to hold office only until the immediate purpose for their appointments had been accomplished.
            On the other hand, we can find no indication in the Gilbert decision that the court regarded the governor's appointments as having any greater force or effect than appointments by the usual appointing authority would have had.  Instead, as we read this case, the court merely held that the power of appointment, per se, devolved to the governor where the usual appointing authority was unable to act.

            Therefore, in answer to your second question, it is our opinion that if the governor were to appoint some person to the Tacoma city council in accordance with our answer to your first question, this appointee would be entitled to remain in office for precisely the same period of time as he would have had he been appointed to office by the remaining council members under the applicable provisions of the city charter.7/   And lastly, for the same reasons, it is our opinion that the person appointed by the governor  [[Orig. Op. Page 7]] to this office would have to possess the same qualifications as are required under the city charter for persons appointed to fill councilmanic vacancies by the remaining councilmen.8/
             We trust that the foregoing will be of assistance to you.
Very truly yours,
Philip H. Austin
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/Article II, § 2.7 of the Tacoma city charter reads as follows:
            "Whenever a vacancy occurs in the office of councilman, the Council shall fill such vacancy by appointment until the first Monday in June following the next general municipal election, and if any unexpired term still remains, it shall be filled by election; provided, that if such vacancy occurs when there remain less than five full days for filing as a candidate at the primary election for such unexpired term, the Council shall appoint a qualified person to fill the full unexpired term."
2/Tacoma City Charter, Article II, § 2.9.
3/Now Washington Constitution Article I, § 34.
4/Section 13, chapter 146, Laws of 1913.
5/Rem. Bal. Code § 8988, now RCW 43.06.010 (2).
6/Now RCW 43.06.010 (2), supra, the same statute which, as Rem. & Bal. Code § 8988, supplied the basis for the court's decision in State ex rel. Gilbert v. Dimmick, supra.
7/See, again, Article II, § 2.7, set forth in footnote 1, above.  Of course, consistent with the policy considerations noted at the outset of this opinion, we leave the matter of interpreting this provision ‑ in the light of recent state legislation changing the times for city elections ‑ to the city attorney.
8/See, Article II, § 2.2, under which residency requirements are established both for persons elected to the city council (a durational residency requirement) and those appointed to fill vacancies.
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