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AGO 1957 No. 9 - January 30, 1957
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John J. O'Connell | 1957-1968 | Attorney General of Washington

OFFICES & OFFICERS ‑- STATE ELECTIVE OFFICIALS AS MEMBERS OF STATE PARKS AND RECREATION COMMISSION

The three members of the state parks and recreation commission who are appointed by the governor but not confirmed by the senate must be elective state officials.

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

                                                                 January 30, 1957

Honorable Victor A. Meyers
Secretary of State
Legislative Building
Olympia, Washington                                                                                                                  Cite as:  AGO 57-59 No. 9

Dear Sir:

            This is in answer to your request for an opinion of the following questions:

            (1) Under the provisions of RCW 43.51.020, creating the state parks and recreation commission, must the three members appointed by the governor and who are not subject to confirmation by the senate be elected state officials?

            (2) If the answer to question (1) is in the affirmative, what is the present status of the three members now on the commission who were appointed by Governor Langlie and who are not state elected officials.  Do they have a specific term of office, or should they be considered as serving at the pleasure of the present governor?

            Your first question is answered in the affirmative.  The three members now on the parks commission are not serving under any specific term of office inasmuch as they were never qualified under the statute to become members of the state parks and recreation commission.

                                                                     ANALYSIS

            The provisions of RCW 43.51.020 read as follows:

            "There is hereby created a 'state parks and recreation commission' consisting of seven electors of the state.  The members of the commission, except three, shall be appointed by the governor by and with the advice and consent of the senate and shall serve for a term of six years, expiring on December 31st of even-numbered years:  Provided, that of all the members first appointed, one shall be appointed for a term of two years, one for a term of four years, and two each for a term of six years.  Three members may be elected state officials and shall be appointed by the governor and serve during the terms for which they were elected.

             [[Orig. Op. Page 2]]

            "In making the appointments to the commission the governor shall choose electors who understand parks and recreation needs and interests.  No person,except the three officials mentioned herein shall be appointed if he holds any elective or appointive state, county, or municipal office.  Members of the commission shall be entitled to be paid a per diem of fifteen dollars,except that no public official shall receive a per diem, for each day actually spent on duties pertaining to the commission, and in addition shall be allowed their expenses incurred while absent from their usual places of residence upon the same basis as expenses are payable to state officials and employees.

            "Payment of per diem and expenses, and all other expenses pertaining to the operation of the commission, shall be made upon vouchers certified to by the commission."  (Emphasis supplied.)

            The first question to be resolved is whether or not the use of the word "may" in the statute, in referring to the three members as being state officials, is to be construed as permissive or mandatory.  The general rule of interpretation is that the word "shall" when used in a statute is imperative, and operates to impose a duty while the word "may" is permissive only and operates to confer discreation.  However, inSpokane County ex rel. Sullivan v. Glover, 2 Wn. (2d) 162, 169, our court has stated that:

            "* * * These words, however, are frequently used interchangeably in statutes, and without regard to their literal meaning.  In each case, the word is to be given that effect which is necessary to carry out the intention of the legislature as determined by the ordinary rules of construction.  59 C.J. 1079, § 635; 25 R.C.L. 767, § 15.  In our own tax code, the word 'shall' is used in almost every section, and it is apparent that it is employed indiscriminately in both the imperative and the permissive sense.

            "With reference to powers and duties imposed by statute on public officers, it is often difficult to determine whether they are mandatory or merely directory.  * * * Always, however, the prime consideration is the intent of the legislature as reflected in its general, as well as its specific, legislation upon the particular subject."

            Applying that rule of construction to the provisions of RCW 43.51.020 above, it seems clear upon analysis that the word "may" is not used in the permissive sense but rather in the  [[Orig. Op. Page 3]] mandatory sense.  For example, the statute provides that the three members shall be appointed by the governor and "* * *  serve during the terms for which they were elected," which can only mean that the members were to be elected officials.  Again the statute provides that no person, "except the three state officials mentioned herein," shall be appointed if he holds any elective or appointive office.  The statute further provides that per diem shall be paid to each member of the commission except public officials.  Accordingly, as we have pointed out, it is our opinion that it was the intent of the legislature that the three members of the state parks and recreation commission be elected state officials who were to serve during the term for which they were elected.

            The only provision of the statute specifying the term for which the three members are to serve is as follows:

            "* * * Three members may be elected state officials and shall be appointed by the governor and serve during the terms for which they were elected."

            Inasmuch as the three present members are not elected state officials, they are not qualified to be members of the state parks and recreation commission, and they have no tenure of office under RCW 43.51.020.  The general rule is stated in 42 Am.Jur., Public Officers, p. 907, as follows:

            "To hold a public office, one must be eligible and possess the qualifications prescribed by law, and an election, or appointment to offices of a person who is ineligible or unqualified gives him no right to hold the office.  * * *"

            Inasmuch as the legislature is authorized to prescribe the qualifications of holding office, providing it does not exceed its constitutional powers, the power of appointment to public office is necessarily limited by statutory provisions which set up certain standards or qualifications for any office, and appointment of a person ineligible under the pertinent statute is a nullity.  See 42 Am. Jur., Public Officers, p. 955.

            It is our conclusion, therefore, that the appointment of the three members who were not elected officials was contrary to the provisions of the statute,supra, and were and are void appointments.  Therefore, such members were never properly members of the state parks and recreation commission and are not now qualified members.  Accordingly, since their appointment was void and contrary to law, they actually have no tenure, fixed or indefinite, under the provisions of the above statute.

            With regard to the power of the governor to remove state officers, the only constitutional provision (§ 3, Article 5) is as follows:

            "All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law."

            Pursuant to the constitutional provisions the legislature enacted the following statutes during the session of 1893:

            "The governor may remove from office any state officer appointed by him not liable to impeachment, for imcompetency, misconduct, or malfeasance in office."  (RCW 43.06.070)

            "Whenever the governor is satisfied that any officer not liable to impeachment has been guilty of misconduct, or malfeasance in office, or is incompetent, he shall file with the secretary of state a statement showing his reasons, with his order of removal, and the secretary of state shall forthwith send a certified copy of such order of removal and statement of causes by registered mail to the last known post office address of the officer in question."  (RCW 43.06.080)

            The general rule of law, however, is to the effect that in the absence of any constitutional or statutory provision prescribing the duration or time of holding an office, the appointing power may remove the incumbent of the office at its pleasure.

            However, in the case of the power of the governor to remove from office, our court has repeatedly held that RCW 43.06.070 is controlling whether the term of office is for a fixed or indefinite period.  See the following cases:

            State ex rel. McReavy v. Burke, 8 Wash. 412, 36 Pac. 281:State ex rel. Howlett v. Cheetham, 19 Wash. 330, 53 Pac. 349; State ex rel. Davis v. Johns, 139 Wash. 525, 240 Pac. 423.

            See also attorney general's opinion No. 51-53-277, issued on April 1, 1952, to Mr. Fred Koch, Assistant to the governor.

            In conclusion, if the three present members had been state officials as contemplated by the act, there would probably now be three vacancies on the state parks and recreation commission, inasmuch as the term for which the three members were appointed would have expired when their term of office expired.  In any event, the governor would be authorized to use the provisions of RCW 43.06.070 and 43.06.080 to remove any of the members on the state parks commission.

Very truly yours,

JOHN J. O'CONNELL
Attorney General


JANE DOWDLE SMITH
Assistant Attorney General

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