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AGO 1987 No. 21 - October 21, 1987
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- LEGISLATOR ‑- NOMINATION OF COUNTY COMMISSIONER TO VACANCY IN MULTI-COUNTY LEGISLATIVE POSITION 

A member of a board of county commissioners (which county is within the joint legislative district) is not eligible to be nominated by a state central committee to fill a legislative vacancy from a joint legislative district.

                                                              - - - - - - - - - - - - - 

                                                                October 21, 1987 

Honorable Brian Ebersole
State Representative, 29th District
5716 Pacific Avenue
Tacoma, Washington 98408 

Cite as:  AGO 1987 No. 21                                                                                                                

 Dear Representative Ebersole:

             By letter dated October 14, 1987, you have requested our opinion on the following two (2) questions:

             1.         Is a member of a board of county commissioners (which county is within the joint legislative district) eligible to be nominated by a state central committee to fill a legislative vacancy in the joint legislative district?

             2.         If your answer to Question No. 1 is in the affirmative, would your answer be the same if the member of the board of county commissioners has actively campaigned for nomination and appointment to the legislative vacancy?

             For reasons which appear in the analysis below, we answer your first question in the negative.  Our negative answer to your first question renders it unnecessary to answer your second question.

                                                                      ANALYSIS

             Your question presents yet another factual situation relating to a series of opinions we have issued over the past 20 years  [[Orig. Op. Page 2]] concerning the authority of county commissioners to appoint one of their own members to vacant positions over which they have power of appointment.1/

            When a legislative vacancy occurs in a legislative district which is wholly within a single county, the county commissioners fill that vacancy by appointing one of three nominees provided by the political party's county central committee.  If the county commissioners fail to appoint within sixty days after the vacancy occurs, the Governor makes the appointment within thirty days thereafter.  If the vacancy occurs in a joint legislative district, it is the state central committee which nominates three persons for appointment by joint action of the boards of county commissioners of the counties comprising the joint legislative district.  Again, if the appointment is not made within the sixty days after the vacancy occurs, the Governor makes the appointment.

             In the earliest of the opinions, AGO 65-66 No. 20, we found that a board of county commissioners could not appoint one of its own members to a vacant county elective office.  In AGLO 1973 No. 101 (copy enclosed), we applied the same rule to an appointment to fill a vacancy in a legislative district located entirely within a single county.  More recently, in AGO 1985 No. 1, we decided that the same rule applies to vacancies in a joint legislative district, and we found that none of the members of any of the county legislative authorities participating in the appointment were eligible to fill the vacancy.  Finally, in AGO 1985 No. 15, we found that a county commissioner who resigns his or her commissioner position prior to the appointment process, with no conditions and with no prior commitment for appointment to a vacancy, would be eligible for appointment to a vacant legislative seat.

             Your present question concerns the possible situation which would occur if a county commissioner were to propose to resign  [[Orig. Op. Page 3]] after nomination by the state central committee to a vacant legislative seat, butbefore the county legislative bodies from the counties in the joint legislative district meet to make the actual appointment.

             Although our previous opinions did not cover this precise situation, we think the clear implication of their reasoning is that, since a county commissioner in the circumstances described is ineligible for appointment to the vacant position, he or she is similarly ineligible for nomination.

             Prior to the approval of Amendment 32 to the Washington State Constitution in 1956, the state central committees of the political parties had no official role to play in the selection of an appointee to fill a vacancy in a legislative position.  From statehood until 1930, the state constitution did not provide for any form of appointment to fill a legislative vacancy, but left the process to a special election.  Washington State Const. art. 2, § 15 (original language).  With the adoption of Amendment 13 in 1930, the county commissioners gained the power (acting alone in legislative districts entirely within a county and jointly in joint legislative districts) to fill temporary vacancies occurring in either house of the legislature to serve until the next general election.  With the adoption of Amendment 33 in 1956, the people of the state for the first time imposed a requirement that the appointed legislator be of the same political party as the legislator whose office had been vacated, and provided for nomination of three persons by the county central committee (in the case of districts entirely within a county) or the state central committee (in the case of joint legislative districts) with the county commissioners to make the final appointment as before.  This basic scheme is left unchanged by the most recent amendment to art. 2, § 15 (Amendment 52, adopted in 1968), which left the constitutional provision in question in the current form:

            Such vacancies as may occur in either house of the legislature or in any partisan county elective office shall be filled by appointment by the board of county commissioners of the county in which the vacancy occurs:  Provided, That the person appointed to fill the vacancy must be from the same legislative district, county or county commissioner district and the same political party as the legislator or partisan county elective officer whose office has been vacated, and shall be one of three persons who shall be nominated by the county central committee of that party, and in case a  [[Orig. Op. Page 4]] majority of said county commissioners do not agree upon the appointment within sixty days after the vacancy occurs, the governor shall within thirty days thereafter, and from the list of nominees provided for herein, appoint a person who shall be from the same legislative district, county or county commissioner district and of the same political party as the legislator or partisan county elective officer whose office has been vacated, and the person so appointed shall hold office until his successor is elected at the next general election, and shall have qualified:  Provided,That in case of a vacancy occurring in the office of joint senator, or joint representative, the vacancy shall be filled from a list of three nominees selected by the state central committee, by appointment by the joint action of the boards of county commissioners of the counties composing the joint senatorial or joint representative district, the person appointed to fill the vacancy must be from the same legislative district and of the same political party as the legislator whose office has been vacated, and in case a majority of said county commissioners do not agree upon the appointment within sixty days after the vacancy occurs, the governor shall within thirty days thereafter, and from the list of nominees provided for herein, appoint a person who shall be from the same legislative district and of the same political party as the legislator whose office has been vacated.

 Const. art. 2, § 15 (emphasis added).

             Prior to 1930, the county commissioners were free to select any qualified person to fill a legislative vacancy, and the only qualifications were the constitutional ones for the position.  See Const. art. 2, § 7.

             Since the enactment of Amendment 32 however, the authority of county commissioners to make a choice has been drastically constricted by the additional requirement that the commissioners choose from three names submitted by the appropriate party central committee, and the further requirement that the replacement legislator be of the same political party as his or her predecessor.  Prior to the critical amendments, the commissioners were free to select any qualified voter resident in the district; subsequently, they were limited to selecting from a list of three names.

              [[Orig. Op. Page 5]]

             It follows that the role of the state central committee (or the county central committee in a district located within a single county) is far more than that of a mere proponent of possible candidates for a vacancy.  Because the commissioners must choose from a list of only three names selected by the state central committee, most of the important selection work in choosing a candidate falls to the committee, which narrows the range of choices from several thousand voters eligible for the position to merely three.

             In our previous opinions, citing well-accepted common law principles, we found that a county commissioner is ineligible for consideration for appointment to a vacant position over which the board on which he or she serves has the power of appointment.  Like persons who are not resident in the legislative district, or residents of the district who are not qualified voters, the county commissioner is simply not on the list of persons qualified to accept the appointment, so long as he or she holds the county legislative position.

             Although art. 2, § 15 does not explicitly cover the point, a necessary implication of the process established in the constitution is that the state central committee submit the names of three qualified candidates for a vacant position.  If the committee were permitted to submit one or more names of persons not qualified to fill the vacancy in question, the effect would be to shorten the list of candidates available for consideration by the county commissioners from three to two, one, or even no names.  If the commissioners are to exercise the discretion left to them under the 33rd and 52nd Amendments, it necessarily follows that the state's central committee must submit the names of three persons all of whom are qualified for appointment.

             However, as noted earlier, a county commissioner who by virtue of his or her office will participate in the appointment process is not, as established in our previous opinions, qualified to take the appointment.  Thus, if a state central committee were to submit the name of a county commissioner, it would be submitting the name of an unqualified person, much the same as if it submitted the name of a nonresident or a person not a qualified voter in the legislative district.

            At this point it might be observed that, even though ineligible for appointment while still serving as a county commissioner, a commissioner might choose to resign after the nomination and before the appointment, thus qualifying for the  [[Orig. Op. Page 6]] position in their intervening period.  The same of course could be said for a nominee not a resident of the district (who could offer to move to the district after nomination) or a nominee not registered to vote (who could offer to register after nomination).  While any of these disqualified persons might remove their disqualifications after the nomination and before the appointment, yet again they might fail to do so.  At the time the state central committee meets to make its nominations, the committee cannot with certainty predict whether a proposed candidate will be qualified for appointment when the county commissioners make the appointment.

             We thus reach the opinion that the state central committee may submit as nominees for a vacant legislative position only candidates who are qualified for the position in question at the time of their nomination.  County commissioners still in office at the time of nomination are not eligible, so a negative answer to your first question is dictated.

             As noted earlier, a negative answer to your first question renders unnecessary any answer to your second question.  However, we should note that neither our prior opinion nor this opinion precludes a commissioner from testing the waters by seeking to secure support for inclusion as a nominee prior to the final selection of the nominees.  The eligibility of the commissioner is viewed from the point in time that the party central committee selects its three nominees.

             We trust the foregoing will be of assistance to you.

 Very truly yours,
 KENNETH O. EIKENBERRY
Attorney General 

JAMES K. PHARRIS
Senior Assistant
Attorney General 

                                                         ***   FOOTNOTES   ***

 1/In each of the opinions we have written, including the present one, the county legislative authority was a traditional board of commissioners.  We recognize that several counties no longer have county commissioners but rather, by their county charters, have created other types of legislative bodies such as county councils.  All of our opinions apply with equal force to county council members or other members of county legislative bodies as well as to those who are styled "county commissioners".

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