OFFICES AND OFFICERS ‑- BOARD OF PRISON TERMS AND PAROLES ‑- CHAIRMAN ‑- AUTHORITY OF GOVERNOR ‑- TERM.
The member of the board of prison terms and paroles designated as chairman is entitled to serve in such capacity only during the term of the appointing governor although he is entitled to continue to serve as member of the board for the fixed term for which he was appointed unless removed for cause under RCW 43.67.020.
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July 26, 1965
Honorable George Kupka
State Senator, 27th District
1916 South M Street
Cite as: AGO 65-66 No. 29
This is written in reply to your letter in which you have requested an opinion of this office on a question which we paraphrase as follows:
Is the member of the board of prison terms and paroles who is designated chairman by the governor under RCW 43.67.020 entitled to continue to serve in that capacity after expiration of the term of office of the appointing governor?
We answer your question in the negative for the reasons set forth in our analysis.
In order to place your question in proper context, and as well, answer it, it is necessary to review in some detail the legislative history and executive construction of the statute providing for the appointment of members to the board of prison terms and paroles.1/
[[Orig. Op. Page 2]]
The basic act establishing the present board of prison terms and paroles was passed in 1935. Section 8, chapter 114, Laws of 1935, provided as follows:
"The board of prison, terms and paroles will consist of a chairman and two other members, each of whom shall be appointed by the governor by and with the advice and consent of the senate. The terms of the first members shall expire as follows: one member, April 15, 1937; one member, April 15, 1939; and one member April 15, 1941. Thereafter, any person appointed a member of the board shall hold office for a term of six years. Vacancies in the membership of the board shall be filled in the same manner in which the original appointments are made. In the event of the inability of any member to act, the governor shall appoint some competent person to act in his stead during the continuance of such disability. The governor in first appointing such members shall designate one of them to serve as chairman during his term of office. The board shall elect his successor from among its members. Any member of the board may be removed by the governor for cause after an opportunity to be heard.
"The members of the board of prison, terms and paroles and its officers and employees shall not engage in any other business or profession nor hold any other public office; nor shall they, at the time of appointment [[Orig. Op. Page 3]] nor during their incumbency of office, serve as the representative of any political party on an executive committee or other governing body thereof, nor as an executive officer or employee of any political committee or association.
"The chairman of the board shall receive an annual salary not to exceed four thousand dollars ($4000) and the other two members of the board shall receive an annual salary not to exceed thirty-five hundred dollars ($3500), and in addition thereto, their necessary expenses actually incurred in the discharge of their official duties." (Emphasis supplied.)
This statute remained in effect until 1945. During the 1945 session of the legislature, House Bill No. 508 was introduced by executive request. In its original form we believe the amendments proposed to § 8, chapter 114, Laws of 1935, were intended by the chief executive to accomplish two objectives: (1) To give the governor complete control of the board by providing members appointed to the board would hold their offices at the pleasure of the governor rather than for fixed terms; (2) to give the governor, rather than the board, the authority to select the chairman of the board.
The original bill provided in pertinent part as follows:
"Section 1. Section 8 of chapter 114 of the Laws of 1935 (section 10249-8 of Remington's Revised Statutes, Supplement) is amended to read as follows:
"Section 8. The board of prison, terms and paroles will consist of a chairman and two other members, each of whom shall be appointed by the governor * * * with the * * * consent of the senate and hold office at the pleasure of the governor. * * *The governor in * * * appointing such members shall designate one of them to serve as chairman during his term of office. * * *
"The members of the board of prison, terms and paroles and its officers and employees shall not engage in any other business or profession nor hold any other public office; nor shall they, at the time of appointment nor during their incumbency of office, serve as the representative of any political party on an [[Orig. Op. Page 4]] executive committee or other governing body thereof, nor as an executive officer or employee of any political committee or association. The members of the board of prison, terms and parole who are subject to appointment and removal by the governor, shall each severally receive such salaries, payable in monthly installments, as shall be fixed by the governor upon the basis of departmental responsibility, not to exceed: However, The sum of seven thousand five hundred ($7,500) per annum, and in addition thereto, their necessary expenses actually incurred in the discharge of their official duties." (Double emphasis ours.)
This bill passed the house of representatives on March 3, 1945. At this point it would perhaps be advisable to depart for the moment from the chronological discussion of the action of the 1945 legislature to note that while the original bill was not finally passed in the above form, the portion thereof we have double underscored was enacted as a part of § 1, chapter 155, Laws of 1945. This provision has remained unchanged since then and is a part of the law today. RCW 43.67.020. It is the possible meanings of the phrase "during his term of office" as used therein that has given rise to your request for our opinion.
Returning now to the 1945 session and to the original form of the bill, it is apparent that had the legislature passed the bill as requested by the governor, the critical phrase with which we are here concerned‑-during his term of office‑-could only be construed as referring to the governor's term of office since board members, serving at the pleasure of the governor, would have no terms of office. InState ex rel. Meredith v. Tallman, 24 Wash. 426, 430 (1901), the court said:
"'"Term," as applied to time, signifies a fixed period, a determined or prescribed duration. 25 Am. & Eng. Enc. Law, p. 949. A term of office is a fixed period prescribed for holding office. People v. Brundage, 78 N.Y. 403. The word "term," when used with reference to the tenure of office, ordinarily refers to a fixed and definite time. Mechem, Public Officers, § 385. In fact, the expression "term of office" so clearly defines itself, the words used are so well understood, and their meaning so generally accepted, that it is useless to attempt to further define it.'"
[[Orig. Op. Page 5]]
See, also,Warnock v. Marysville, 17 Wn.2d 515, 519, 136 P.2d 188 (1943);State ex rel. Heffernan v. Hoquiam, 186 Wash. 50, 56, 56 P.2d 1012 (1936); AGO 63-64 No. 9 [[to Avery Garrett, State Representative on January 31, 1963]]. Wash. 50, 56, 56 P.2d 1012 (1936); AGO 63-64 No. 9.
House Bill No. 508, however, as noted above, was not enacted completely in the form requested by the governor.
The senate, by amendment, (which amendment was later concurred in by the house) struck the provision making the holding of office "at the pleasure of the governor" and inserted in lieu thereof preceding the sentence "The governor in appointing such members shall designate one of them to serve as chairman during his term of office" the following:
". . . The terms of the first members shall expire as follows: one member, April 15, 1937; one member, April 15, 1939; and one member April 15, 1941. Thereafter, any person appointed a member of the board shall hold office for a term of six years. Vacancies in the membership of the board shall be filled in the same manner in which the original appointments are made. In the event of the inability of any member to act, the governor shall appoint some competent person to act in his stead during the continuance of such disability. Such members shall not be removable during their respective terms except for cause determined by a court of competent jurisdiction in Thurston County, Washington." (Now a part of RCW 43.67.020.)
Clearly the legislature by adopting the above senate amendment manifested an intent to deny the governor control over membership on the board. However, it seems far less clear that the legislature, by restoring "terms of office" to the members of the board, further intended (contrary to the clear intent of the original executive request bill) to change the meaning of the critical "during his term of office" phrase so as to cause the board chairman to serve in such capacity forhis term rather than the term of the appointing governor.2/
Governor Langlie, the first governor faced with a need to interpret this 1945 amendment, most certainly interpreted it as making the board chairman's term as such coextensive with the term of the appointing governor. Pursuant to the 1945 act, [[Orig. Op. Page 6]] Governor Walgren appointed John Quine as a member of the board for a term commencing May 1, 1945, and ending April 15, 1951, and designated him chairman of the board. In January 1949, Governor Langlie assumed the office of governor succeeding Governor Walgren. On January 17, 1949, he appointed the Reverend Henry H. Ness to fill out the unexpired term of George Downer who had resigned,and designated him as chairman3/ notwithstanding the fact that Mr. Quine had two years remaining to run on his six-year term. Mr. Quine continued to serve on the board as a member until his term expired in 1951.
We have been unable to find any correspondence or any discussion in the newspaper accounts of the appointment of Mr. Ness which would indicate anyone questioned the authority of Governor Langlie when appointing Mr. Ness to designate him as chairman of the board.
The supreme court of this state has said that executive construction of an ambiguous statute is generally accepted by the court as persuasive where the legislature has silently acquiesced in such construction by failing to amend the act. State ex rel. Ball v. Rathbun, 144 Wash. 56, 256 Pac. 330 (1927). More particularly the court inBradley v. Dept. Labor & Industries, 52 Wn.2d 780, 786, 329 P.2d 196 (1958), said:
". . . Where a statute is ambiguous, construction placed upon it by the officer or department charged with its administration is not binding on the courts butis entitled to considerable weight in determining the legislative intention, and the persuasive force of such interpretation is strengthened when the legislature, by its failure to amend or by amending some other particular without repudiating the administrative construction, silently acquiesces in the administrative interpretation. White v. State, 49 Wn. (2d) 716, 306 P. (2d) 230." (Emphasis supplied.)
[[Orig. Op. Page 7]]
Following Governor Langlie's construction of the statute, the legislature twice amended the section "in some other particular" (in 1955 and 1959)4/ without repudiating the executive construction.5/
It is our best judgment, considering the history of the legislation and the executive construction thereof,6/ followed by legislative acquiescence therewith, that the member of the board of prison terms and paroles designated as chairman is entitled to serve in such capacity only during the term of the appointing governor although he is entitled to continue to serve as member for the fixed term for which he was appointed unless removed for cause under RCW 43.67.020.
In thus concluding we recognize that an argument to the contrary may be made on the basis of a literal reading of the language of the statute in question. Such a conclusion would seemingly be supported by application of the so-called "last antecedent rule" which was utilized by our court in Davis vs. Gibbs, 39 Wn.2d 481, 483, 236 P.2d 545 (1951), in which the court said:
"Where no contrary intention appears in a statute, relative and qualifying words and phrases, both grammatically and legally, refer to the last antecedent. State v. [[Orig. Op. Page 8]] Bailey, 67 Wash. 336, 121 Pac. 821;State ex rel. Blakeslee v. Clausen, 85 Wash. 260, 148 Pac. 28;Tabb v. Funk, 170 Wash. 545, 17 P. (2d) 18; Smith v. Department of Labor & Industries, 8 Wn. (2d) 587, 113 P. (2d) 57; Crawford, Statutory Construction 331; 2 Horack's Sutherland Statutory Construction (3rd ed.) 448. See, also,State v. Hemrich, 93 Wash. 439, 161 Pac. 79.
"The last antecedent is the last word which can be made an antecedent without impairing the meaning of the sentence. Traverse City v. Township of Blair, 190 Mich. 313, 157 N.W. 81. (Emphasis supplied.)
However, the court in its subsequent decisions in Parkhurst v. Everett, 51 Wn.2d 292, 318 P.2d 327 (1957), andMartin v. Aleinikoff, 63 Wn.2d 842, 389 P.2d 422 (1964), has rejected application of this technical rule of grammar where the qualifying word or phrase is an adverbial, rather than an adjective word or phrase‑-as in the present instance, where the phrase "during his term of office" is an adverbial phrase modifying the verb "serve."
In any event we do not believe the court would adopt a literal or grammatical construction of the 1945 law in view of the particular history of the legislation and executive construction thereof, which we have heretofore detailed.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
PHILIP H. AUSTIN
Assistant Attorney General
*** FOOTNOTES ***
1/Resort to the legislative history may be had in this case to discover the intent of the legislature because the act is ambiguous as will be demonstrated later in this opinion. See, Lynch v. Dept. of Labor & Industries, 19 Wn.2d 802, 809, 145 P.2d 265 (1944), and cases cited therein. See, also,Procter & Gamble Co. v. King County, 9 Wn.2d 655, 115 P.2d 962 (1941); and, for two of the more recent cases wherein the court examined the legislative history of an act in order to ascertain and thereby give effect to legislative intent, see Nostrand v. Balmer, 53 Wn.2d 460, 335 P.2d 10 (1959);State ex rel. Blume v. Yelle, 52 Wn.2d 158, 324 P.2d 247 (1958).
2/Notably, both the governor and the controlling majority of the 1945 state legislature were of the same political party.
3/Neither the record of appointments maintained in the governor's office as required by RCW 43.06.020 nor the entries of confirmations found in senate journals indicates (as far as we have been able to ascertain) the individual board member designated by the governor as chairman. However, the action of Governor Langlie was reported in the January 13, 1949, editions of the Seattle Daily Times and the Daily Olympian. Resort to the newspaper accounts is permissible as a means of contemporaneous construction. See,Yelle v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (1959).
4/By § 9, chapter 340, Laws of 1955, the section was amended in regard to salary. By § 1, chapter 32, Laws of 1959, the membership on the board was increased from 3 to 5 members and the terms reduced from 6 to 5 years.
5/For two of the more recent opinions of this office where we recognized the significance of contemporaneous and executive construction in arriving at legislative intent, see, AGO 6566 No. 2 [[to John T. McCutcheon, State Senator on January 12, 1965]]and AGO 65-66 No. 18 [[to Gary Grant, State Representative on May 6, 1965]].
6/We have not overlooked the fact that in 1957, when Governor Rosellini took office he did not replace or attempt to replace Mr. James Skaggs, the chairman of the board, who had been appointed by Governor Langlie for a term ending on April 15, 1959. However, Governor Rosellini reappointed Mr. Skaggs for a new term in 1959, to end in 1964, and he continued as chairman of the board until he resigned in March, 1960. This record indicates only that Governor Rosellini was satisfied with the work of Mr. Skaggs and most certainly does not indicate in any respect that he felt he lacked the power to name a new chairman in 1957.