OFFICES AND OFFICERS ‑- STATE ‑- COUNCIL ON POSTSECONDARY EDUCATION ‑- STATUS OF CITIZEN MEMBERS APPOINTED PRIOR TO JULY 1, 1975
Those persons appointed to the council on higher education (now council for postsecondary education) prior to the enactment of chapter 132, Laws of 1975, 1st Ex. Sess., are not now, as a consequence thereof, subject to a requirement of reconfirmation or rejection by the state senate.
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June 17, 1977
Honorable Dixy Lee Ray
Governor of the State of Washington
Olympia, Washington 98504 Cite as: AGLO 1977 No. 24
Dear Governor Ray:
By letter previously acknowledged you have requested the opinion of this office on a question which we paraphrase as follows:
In view of the enactment of chapter 132, Laws of 1975, 1st Ex. Sess., redesignating the former council on higher education as the council for postsecondary education and making certain changes in the composition and functions thereof, are those citizen members previously appointed by the governor and confirmed by the senate under RCW 28B.80.040 now subject to a requirement of reconfirmation or rejection?
We must answer the foregoing question in the negative for the reasons set forth in our analysis.
By its enactment of § 1, chapter 277, Laws of 1969, 1st Ex. Sess., the legislature created an agency which it denominated ". . . the council on higher education of the state of Washington." As described in § 2 of the act, the [[Orig. Op. Page 2]] essential purpose of that agency was ". . . to facilitate planning for higher education . . ." Section 3 then enumerated the specific functions of the council and § 4 provided for its composition, as follows:
"Nine citizen members to be appointed by the governor and confirmed by the senate as representatives of the public at large; two members of the house of representatives, one from each party, appointed by the speaker of the house; two members of the senate, one from each party, appointed by the president of the senate; two members of the governor's staff appointed by the governor; the presidents of each of the public universities and four-year colleges of the state; the executive director of the state board for community college education; two presidents of the state's private universities: or four-year colleges and one community college president appointed by the governor."
By § 5 of the act the legislature then provided that:
"The nine citizen members of the council alone shall have the right to vote and decide by a simple majority all matters coming before the council. The other members of the council shall have voice but no voting power."
And then by § 6 the legislature fixed the terms of office of the nine citizen members ‑ as follows:
"Citizen members of the council shall serve for terms of six years, said terms expiring on June 30th of the sixth year of their term: PROVIDED, That of the citizen members first appointed by the governor, three shall be appointed for a term of two years, three shall be appointed for a term of four years and three shall be appointed for a term of six years."
Bearing the foregoing description of the original act in mind we next turn to chapter 132, Laws of 1975, 1st Ex. Sess., the enactment which has prompted your question. First, by § 1 of that act the legislature amended § 1, chapter 277,supra ‑ since codified as RCW 28B.80.010 ‑ to read as follows:
[[Orig. Op. Page 3]]
"There is hereby created the council ((
on higher)) for post-secondary education in the state of Washington."
Secondly, by §§ 2 and 3 of chapter 132, supra, the legislature made corresponding changes in §§ 2 and 3 of chapter 277,supra, mainly replacing the phrase "higher education" with the term "post-secondary education" throughout both of those sections of the law. And then thirdly, by § 4 of chapter 132, the legislature amended § 4, chapter 277 (since codified as RCW 28B.80.040) in the following respects:
"The council shall consist of members who are truly representative of the public, including the minority community, and shall be selected as follows:
"Nine citizen members to be appointed by the governor and confirmed by the senate as representatives of the public at large, one of whom shall be a full time undergraduate student at the time of his or her appointment at a post-secondary educational institution; ((
two members of the house of representatives, one from each party, appointed by the speaker of the house; two members of the senate, one from each party, appointed by the president of the senate)) the superintendent of public instruction; (( two members)) one member of the (( governor's staff)) executive branch of government appointed by the governor; (( the presidents of each)) one president of the public universities and four-year colleges of the statewho is the chairman of the council of presidents; the executive director of the state board for community college education; (( two presidents))the executive director of the coordinating council for occupational education or its successor agency; one president of the state's private universities or four-year colleges and one (( community college president)) representative of post-secondary proprietary education, each appointed by the governor.
"It shall be the duty of the director of the state board for community college education to represent not only the state board for community college education, but also all the community colleges in the state and their respective governing boards and he is further directed and charged to act as a liaison between [[Orig. Op. Page 4]] the council and the state board for community college education and boards of trustees of the community college districts in the state.
"It shall be the duty of the superintendent of public instruction to represent the common school system presenting such information to the council as may be of assistance in the development of overall educational plans and articulation between the common school and post-secondary systems of education.
"It shall be the duty of the executive director of the coordinating council for occupational education or its successor agency to represent vocational and technical education, presenting to the council such information regarding the state plan for vocational education and other data as may be of assistance in the development of overall educational plans."
The basic issue raised by your question is quite simple: Did the legislature, by its enactment of chapter 132, Laws of 1975, 1st Ex.Sess.,supra, abolish the former council on higher education and replace it with a new agency, the council on postsecondary education? Or did it, instead, merely change the name of the agency and make certain alterations in its composition and functions?
In your letter asking for our opinion you have urged that we adopt the first of these two positions and thus answer your question, as above paraphrased, in the affirmative. In actuality, however, it would seem to us that such a response would give rise to something more than a mere requirement for reconfirmation by the senate of those citizen members previously appointed and confirmed before the effective date (July 1, 1975)1/ of the 1975 amendatory act. If the effect of that act were truly to abolish the original council on higher education and replace it with a new agency, the tenure of all such previously appointed citizen members would thereby have ended as of that date and new gubernatorial appointments wouldthen have had to have been made. But in fact, as you know, that was not done. Instead, all six of the previously appointed citizen members whose terms had not yet expired continued to serve pursuant to their earlier [[Orig. Op. Page 5]] appointments ‑ at the request of the governor.2/ Moreover, as you have also acknowledged in your letter, the foregoing executive response to the 1975 act was consistent with an informal opinion prepared by Senior Assistant Attorney General Richard M. Montecucco of this office at the time. In material part that opinion, which was written to Dennis J. Curry, then Acting Executive Coordinator for the Council on Higher Education, on June 12, 1975, read as follows:
"Recently you contacted me by telephone and asked whether the above‑referenced legislation actually creates a new agency which would entail considerable reorganization and structuring prior to the effective date of the act, which is July 1, 1975.
"In accordance with your request, I have reviewed the bill and it is my opinion that the legislative amendments simply restructure the council and redefine its membership. In essence it is an amendatory bill rather than abolishing one agency and creating another."
With all due respect to your present desire for a contrary opinion we must now advise you that, in our considered judgment, Mr. Montecucco was entirely correct in that contemporaneous assessment of what the legislature did (or did not) do by its enactment of chapter 132, Laws of 1975, 1st Ex.Sess.,supra. While the legislature most certainly could have abolished the council on higher education and replaced it with a new agency, it did not do so. Instead, it simply changed its name, slightly altered its functions and changed its composition in certain respects; i.e., by
(a) requiring that one of the nine citizen members be a full time student;
(b) dropping the four ex officio legislator positions previously provided for;
(c) adding the state superintendent of public instruction;
(d) replacing "two members of the governor's staff" with "one member of the executive branch of government appointed by the governor";
[[Orig. Op. Page 6]]
(e) replacing the presidents of all of the four year colleges and universities with one such president only ". . . who is the chairman of the council of presidents";
(f) adding the executive director of the coordinating council for occupational education;
(g) reducing (from two to one) the number of private college presidents; and
(h) replacing a community college president with ". . . one representative of postsecondary proprietary education . . ." to be appointed by the governor.
Although this latter does add up to a fair number of changes in the make‑up of the council you will quickly note that only one of them had anything at all to do with the nine citizen members who were, and remain, subject to gubernatorial appointment and senate confirmation ‑ and that change did not alter the number of citizen members but merely added a qualification in the case of one of them. Had the legislature, nevertheless, intended that the entire slate of existing citizen members was then to be subject to immediate replacement we suspect that it would have found appropriate words to express that intent. Cf.,State ex rel. Pirak v. Schoettler, 45 Wn.2d 367, 274 P.2d 852 (1954), andBradley v. Dept. Labor & Ind., 52 Wn.2d 780, 329 P.2d 196 (1958).
Also to be borne in mind is the then governor's executive construction of the 1975 act. As indicated in numerous cases such as White v. State, 49 Wn.2d 716, 306 P.2d 230 (1957), to the extent that an act of the legislature is at all ambiguous, the construction placed upon it by the officer or agency charged with its administration is, while not binding on the courts, entitled to great weight. Here, that officer was then Governor Evans and he responded to the passage of chapter 132,supra, by simply requesting his earlier appointees to continue serving for the rest of their then existing terms rather than by making new appointments for new terms. Thus, just as did this office at that time, he also manifested an understanding of the act as merely continuing the existence of the original agency under a new name ‑ at least by his actions if not by his words.3/
[[Orig. Op. Page 7]]
Furthermore, it is also of note that the governor had earlier expressly characterized the new law in essentially the same manner in his veto message relative to his partial veto of § 7 of the bill (SSB 2519) as passed by the legislature ‑ by which it proposed to amend another section of the original (1969) law by adding a proviso stating that:
". . . no action [by the council] shall be taken by less than five affirmative votes therefor."
In vetoing that section of the bill the governor prefaced his veto message with the following explanation of the scope and thrust of the bill (SSB 2519), as he understood it, by saying:
"This bill amends current law on the structure and duties of the Council on Higher Education and changes its name to the Council on Post-Secondary Education."
And, of course, the significance of this latter action goes beyond that of a mere executive construction because, as you know, it is a settled principle that any action taken by the governor in the exercise of his veto power under Article III, § 12 of the state constitution must be considered as a part of thelegislative process when determining legislative intent. See, e.g.,Shelton Hotel Co. Inc. v. Bates, 4 Wn.2d 498, 104 P.2d 478 (1940).
What all of this adds up to, in our opinion, is a rather compelling set of reasons why your question (as above paraphrased) must be answered in the negative. Those persons [[Orig. Op. Page 8]] appointed to the council on higher education (now council for postsecondary education) prior to the enactment of chapter 132, Laws of 1975, 1st Ex. Sess., supra, are not now, as a consequence thereof, subject to a requirement of reconfirmation or rejection by the state senate. In view of your expressed wish for a contrary answer we, of course, regret that this is so but trust, nevertheless, that the foregoing will be of assistance to you.
*** FOOTNOTES ***
1/See, § 19, chapter 132, supra.
2/Three of the nine citizen members, on the other hand, ended their regular terms on June 30, 1975, in accordance with § 6, chapter 277, Laws of 1969, 1st Ex. Sess., supra; two of those were then replaced by new appointees while the third was reappointed for a new six-year term.
3/In this instance we have a case of action speaking louder than words. We have examined the identical form letters written by Governor Evans in July of 1975 asking the six citizen member incumbents whose terms had not yet ended to continue to serve for the remainder of their unexpired terms and we note that the opening paragraph of each of those letters does describe chapter 132, Laws of 1975, 1st Ex. Sess., as ". . . abolishing the Council on Higher Education and instituting the new Council on Post Secondary Education." But the governor then went on, by the remainder of those letters, to request all of those members simply to continue to serve for terms coinciding with the terms which they all were already serving. Weighing thisaction against the rather unfortunate choice of words used by whoever drafted the letters, we conclude that the governor's action is the more meaningful manifestation of his executive construction of the act.