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AGLO 1970 No. 81 - May 22 1970
Attorney General Slade Gorton

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                                                                   May 22, 1970
Honorable Daniel J. Evans
Governor of the State of Washington
Legislative Building
Olympia, Washington 98501
                                                                                                               Cite as:  AGLO 1970 No. 81
Dear Governor Evans:
            In the light of the recent approval by the voters of King county of an initiative prohibiting the construction of that county's proposed multi-purpose stadium at the Seattle Center site, you have asked for our opinion on several questions pertaining to the present status of the Washington State Stadium Commission and to the legal ability of the county in question to proceed with the stadium project.  As you have pointed out, the site which was the subject of this initiative was selected as the location of the stadium in 1968 by the board of county commissioners (then the governing body of King county) based upon recommendations submitted to it by the aforesaid stadium commission.
            The statutory provisions relating to the Washington State Stadium Commission are contained in an act which was passed by the 1967 legislature1/to facilitate the acquisition, construction and operation of public stadium facilities by any of the various counties, cities and towns in this state ‑ acting either individually or jointly.  However, while § 5 of this act (RCW 67.28.120) granted the requisite substantive authority to "Any municipality . . . either individually or jointly with any other municipality, . . ." to acquire, construct, operate and regulate the use of "public stadium facilities . . . "it is to be noted that one of the principal financing sources provided for in the act, a hotel and motel occupancy tax,2/was only made available to class AA counties and (under an amendment contained in § 1, chapter 89, Laws of 1970) to
            ". . . any city of the first class having  [[Orig. Op. Page 2]] a population of one hundred fifty thousand or more not situated in a class AA county, . . ."
            The only sections of the act which refer in any way to the stadium commission are §§ 2 ‑ 4 (presently codified as RCW 67.28.090 ‑ 67.28.110) reading as follows:
            "There is created a stadium commission to consist of six members to be selected as follows:
            "The governor shall appoint a chairman and one other member of the commission.
            "Any class AA county, class A county, or first class county may within ninety days following the effective date of this act submit to the governor a request that the commission conduct a study and investigation as provided in section 3 of this act relative to the construction of a stadium within such county.  Such request shall be supported by plans and other relevant information.
            "Within two weeks of the end of the ninety-day period, the governor and/or the two members of the commission appointed by him shall meet and consider any such requests, and shall accept that request which in their sole discretion appears to present the most feasible plan.
            "Thereupon, the board of county commissioners of the county whose request is accepted shall select two members from its body as members of the commission, and the mayor of the city having the largest population in such county shall appoint two members from such city's legislative body to the commission.
            "The commission shall meet at such time or times as may be designated either by the governor or by the chairman of the board, and shall serve without compensation.  They shall receive, for time spent on the commission, per diem and mileage allowances in conformity with the amounts allowed for legislators under the provisions of RCW 44.04.120."  (RCW 67.28.090.)
             [[Orig. Op. Page 3]]
            "The commission is charged with and shall have the duty of making a complete study and investigation into the acquisition of a site for public stadium facilities, including feasibility studies in connection therewith, and shall report its findings and recommendations to the governing body of the county whose request is accepted as provided in section 2 of this act."  (RCW 67.28.100)
            "The commission is authorized to engage professional help including, but not limited to, (1) research and motivational study analysts, (2) cost analysis accountants, (3) professional engineers, architects and designers, professional urban planners, and such other staff as may be necessary to carry out its duties under this act."  (RCW 67.28.110)
            Your questions, and our answers thereto, are as follows:
            Question (1):
            Is a county's authority to acquire, construct and operate a multi-purpose public stadium facility under the provisions of chapter 236, Laws of 1967, limited to doing so at a site selected by the stadium commission?
            No.  The function of the stadium commission is simply one of studying and investigating the subject of site acquisition "including feasibility studies in connection therewith" and reporting "its findings and recommendations to the governing body of the county whose request is accepted . . ."  (Emphasis supplied.)  The county in response to whose request the commission conducts this study is by no means bound, under the act, to proceed with the project at any particular site which may be included in the commission's recommendations.  It may, instead (in so far as chapter 236, Laws of 1967, is concerned) disregard those recommendations and proceed to construct the stadium at any site which is available and which the county determines to select.  In fact, it would be perfectly permissible for a county, or any other municipality, to exercise any of the substantive powers granted to it by chapter 236, Laws of 1967, without ever calling for the assistance of the stadium commission in the first place, for nothing contained in this act in any way conditions a  [[Orig. Op. Page 4]] municipality's authority thereunder upon any sort of review and approval of its project by the stadium commission.
            Question (2):
            Assuming the foregoing answer to question (1), is King county's authority to proceed with the particular stadium project which was approved by its voters at a special election held on February 13, 1968, nevertheless limited in some manner to construction at a site recommended by the stadium commission?
            The proposition which was approved by the voters of King county on February 13, 1968, was one for the issuance of general obligation bonds in an amount not to exceed $40,000,000 for the purpose of acquiring, constructing, and equipping a multi-purpose public stadium in the county, and for authority to pay the principal and interest on those bonds out of property taxes in excess of the constitutional 40 mill limit (among other revenue sources).  Thus, voter approval was called for only because of the requirements of Article VIII, § 6 (Amendment 27) and Article VII, § 2 (Amendment 17) of our state Constitution relating, respectively, to special municipal indebtedness and excess property taxation.
            Nothing contained in the ballot proposition as submitted to the voters made any reference to any specific location for the facility to be acquired and constructed with the bond proceeds.  It is true that Resolution No. 34567 of the King county commissioners,3/ under which issuance of the bonds was initially proposed, did contain a statement to the effect that the stadium was to be constructed on a site within the county to be "recommended by the Washington State Stadium Commission."  However, the only reference made to this bond resolution in the ballot proposition was to other portions of the resolution relating to the manner of payment of the bonds, and not to this item.
            Thus, while this is a question which ultimately should be passed upon by the bond counsel under whose guidance the bonds in question are being issued, it is by no means clear to us that even as to its expenditure of the bond proceeds, King county is in any way legally bound to construct  [[Orig. Op. Page 5]] the stadium only at a site recommended to it by the stadium commission.4/
            Question (3):
            What is the present legal status of the Washington State Stadium Commission?
            This state agency was created by the legislature through the enactment of § 2, chapter 236, Laws of 1967 (RCW 67.28.090) to be composed as specified therein and to perform the functions and duties enumerated in § 3 of this act (RCW 67.28.100) which, repeated for ease of reference, provides as follows:
            "The commission is charged with and shall have the duty of making a complete study and investigation into the acquisition of a site for public stadium facilities, including feasibility studies in connection therewith, and shall report its findings and recommendations to the governing body of the county whose request is accepted as provided in section 2 of this act."
            While no pertinent Washington cases have been found, it is generally held in other jurisdictions that a public agency created by a state legislature has a continuing existence until it is abolished by the same authority which created it.  See, 42 Am.Jur., Public Officers, §§ 33-36; 1. Am.Jur. 2d Ad. Law ‑ §§ 25-26; 67 C.J.S., Officers, § 10.
            Thus, although it is our understanding that no meetings of the stadium commission have been held since the time of rendition of its final report to the King county commissioners on November 15, 1968, and that at that time the commission purported to disband, it is our opinion, consistent with the rule above stated, that the stadium commission may be said to retain a continuing existence in the  [[Orig. Op. Page 6]] absence of any legislation designed to abolish it ‑ of which there has been none to date.
            Question (4):
            May you, as governor of this state, call the stadium commission back into session?
            Clearly yes, under the express provisions of § 2, chapter 236, Laws of 1967, which state that:
            ". . .
            "The commission shall meet at such time or times as may be designated either by the governor or by the chairman of the board, . . ."
            Question (5):
            What is the present composition of the stadium commission?
            As originally constituted following its creation by the 1967 legislature and its activation upon receipt of King county's request under § 2, chapter 236, Laws of 1967 (RCW 67.28.090), supra, the stadium commission was comprised as follows:
            Joseph E. Gandy (Chairman) and David L. Cohn, as gubernatorial appointees; John D. Spellman and John T. O'Brien, as King county commissioners, appointed by that board under the terms of the statute; and Charles M. Carroll and Floyd Miller, as members of the legislative body (city council) of Seattle (the largest city in King county) ‑ appointed by the mayor of Seattle, also as provided for under the statute.
            The problem posed by this question arises because two of the aforesaid original members of the commission, Mr. Spellman and Mr. Miller, no longer occupy the offices they held at the time of their appointments.  Mr. Spellman has become the chief executive of King county under its new charter, and Mr. Miller has retired from public office.
            It seems clear to us that the four positions on the commission which are to be occupied by either county commissioners or city councilmen were intended by the legislature to be ex officio positions; i.e., positions held by the persons  [[Orig. Op. Page 7]] appointed thereto only so long as they continued to serve in the county or city offices by virtue of which they qualified for appointment.  Accord, Lobrano v. Police Jury, Etc., 150 La. 14, 90 So. 423 (1921).  Hence, Mr. Spellman and Mr. Miller, because of their subsequent departure from the offices which they held at the time of their appointment to the commission, must be regarded as having vacated their stadium commission positions.
            The manner of filling Mr. Miller's position is clear: Under RCW 67.28.090, the power of appointment is vested in the mayor of Seattle, as before, and he may fill the position by appointment of any of the present members of the city council.
            In the case of Mr. Spellman's position, the matter is somewhat complicated by virtue of the change in the form of government which has occurred in King county, now operating under its new freeholder charter, since chapter 236, Laws of 1967, was enacted.  However, our thinking on this question is as follows:
            The new appointee to this position should be a member of the King county council, which succeeded to the legislative powers of the old county commission under the provisions of Article XI, § 4 (Amendment 21) of our state Constitution and of the county charter.  However, the appointment should be made by the county executive (i.e., Mr. Spellman, as aforesaid) ‑ on the theory that the appointment of public officers is ordinarily an executive rather than a legislative function.  Furthermore, this approach appears to be within the contemplation of the county charter itself, for § 340.10 thereof provides as follows:
            "The county executive shall appoint the county administrative officer and the chief officer of each executive department except the county assessor and shall appoint the members of all boards and commissions except as otherwise provided in this charter."
            Question (6):
            What powers will the stadium commission have with respect to the project in question if it is reconvened as aforesaid?
             [[Orig. Op. Page 8]]
            The issue raised by this question is whether the commission must be said to have exhausted all of its authority by its completion of its initial investigation and study of the matter of site selection for the King county stadium in November of 1968.  In the limited time which we have had for research on this question, we have not discovered any authority going either way on this issue; however, as we view it, this issue will become critical only if the commission, after reviewing its earlier study and report, deems it necessary or appropriate to proceed further and to study and evaluate possible stadium sites other than those included in its earlier study.  And even if the commission should be regarded as being precluded from doing this, officially, the lack of any absolute legal relationship between the commission's recommendations and the county's authority with respect to site selection ‑ as noted above ‑ would seem to constitute a sufficient safeguard against any irreparable consequence of the commission's taking this course of action.  If the commission, after further study, were to recommend a site or sites different from its initial recommendation, and the county were to select one of these new sites, the county's action would in any event be defensible on the theory that its authority to build the stadium is not limited to the construction thereof at a site officially designated by the commission ‑ in accordance with our answers to questions (1) and (2), above.
            Question (7):
            May the King county council amend or repeal the provisions of the recent initiative prohibiting the stadium from being constructed at the Seattle Center site, and pass a new ordinance reestablishing this site as the location for the stadium?

            Our examination of the county charter reveals no provision therein which purports to limit the authority of the council to amend or repeal an ordinance passed by the initiative process.5/   In this regard, the charter differs materially from  [[Orig. Op. Page 9]] the initiative and referendum section of our state constitution6/ which expressly provides that:
            ". . .  No act, law, or bill approved by a majority of the electors voting thereon shall be amended or repealed by the legislature within a period of two years following such enactment.  But such enactment may be amended or repealed at any general regular or special election by direct vote of the people thereon."
            Of course, as you know, the Washington supreme court has not yet issued its full written opinion in connection with its ruling of May 6, 1970, that the county initiative in question was authorized by the charter, notwithstanding its content.7/   Until the full text of this opinion is available, it will not be possible to state with assurance what the county council's authority to counteract the initiative will be ‑ because this question must be regarded as depending somewhat, on the characterization which the court gives to the initiative power of the people of King county under their charter.
            However, in the absence of anything in this forthcoming supreme court opinion indicating that this initiative power involves a lawmaking authority on the part of the people which is superior in some respect to that possessed by the county council, it would be our opinion that the council is free to repeal the initiative and pass a new ordinance reestablishing the Seattle Center site as the location for the stadium ‑ if, as a matter of policy, it desires to do so.
            We trust that the foregoing will be of some assistance to you at this time.
Very truly yours,
Philip H. Austin
Assistant Attorney General
                                                         ***   FOOTNOTES   ***
1/Chapter 236, Laws of 1967 (now codified as chapter 67.28 RCW).
2/See, §§ 11-14 (RCW 67.28.180 ‑ 67.28.210) and AGO 1967 No. 31 [[to Francis E. Holman, State Representative on August 21, 1967]].
3/Dated December 18, 1967.
4/And, of course, to the extent that the county might see fit to finance the stadium by some other means, the terms of the bond resolution are, obviously, totally immaterial.
5/See, King County Charter §§ 230.50 ‑ 230.60.
6/Article II, § 1, Amendment 7.
7/See, Paget v. Logan, et al., Supreme Court Cause No. 41539.