AGLO 1973 No. 33 - Mar 2 1973
OFFICES AND OFFICERS ‑- STATE ‑- GOVERNOR ‑- GUBERNATORIAL APPOINTMENTS
If the governor makes an appointment which is subject to senatorial confirmation under Article XIII, § 1 of the Washington Constitution or a similar statutory provision, and the senate fails to act at its first session following such appointment, it is not necessary that the appointee's name again be submitted to the next session of the legislature in order for the senate to have jurisdiction to act on the appointment.
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March 2, 1973
Honorable Martin J. Durkan
State Senator, 47th District
Olympia, Washington 98504 Cite as: AGLO 1973 No. 33
This is written in response to your recent letter requesting our opinion on a question regarding the jurisdiction of the State Senate to confirm or reject gubernatorial appointments which we paraphrase as follows:
If the governor makes an appointment which is subject to senatorial confirmation under Article XIII, § 1 of the Washington Constitution or a similar statutory provision, and the senate fails to act at its first session following such appointment, is it necessary that the appointee's name again be submitted to the next session of the legislature in order for the Senate to have jurisdiction to act on the appointment?
We believe that this question is answerable in the negative for the reasons set forth in our analysis.
We begin with a word of caution. As you know, numerous offices in our state government are filled by persons who are appointed by the governor by and with the consent of the State Senate. In some cases this is because of the applicability to the particular office of Article XIII, § 1 of our state Constitution which reads as follows:
"Educational, reformatory and penal institutions; those for the benefit of blind, deaf, dumb, or otherwise defective youth; for the insane or idiotic; and such other institutions as the public good may require, shall be fostered and supported by the state, subject to such [[Orig. Op. Page 2]] regulations as may be provided by law. The regents, trustees, or commissioners of all such institutions existing at the time of the adoption of this Constitution, and of such as shall thereafter be established by law, shall be appointed by the governor, by and with the advice and consent of the senate; and upon all nominations made by the governor, the question shall be taken by ayes and noes, and entered upon the journal." (Emphasis supplied.)
In other cases, the senate's consent or "confirmation" is required not because of this provision but because a statute relating to the particular office so states. Examples of such statutes include RCW 66.08.012, dealing with the liquor control board; RCW 47.01.020, involving the highway commission; RCW 14.04.030, pertaining to the aeronautics commission; RCW 80.01.010, governing the utilities and transportation commission; and RCW 43.17.020, involving, among others, the state directors of ecology, labor and industries, agriculture, motor vehicles, general administration, commerce and economic development, and revenue. Because not all of these statutes are identically worded, care must be taken in applying a given legal conclusion reached in connection with one particular appointive office to all others without first examining the statute which is applicable in each case. For example, while neither Article XIII, § 1,supra, nor any of the above cited statutes set any deadlines for senatorial action on the appointments governed thereby, another statute, RCW 41.06.110 involving the state personnel board, does ‑ by providing that
". . . no member appointed when the legislature was not in session shall continue to be a member of the board after the thirtieth day of the next legislative session unless his appointment shall have been approved by the senate. . . ."
In paraphrasing your question we have intentionally limited it to appointments made under Article XIII, § 1, supra, and similar statutes not containing any such deadline and, likewise, not containing any other provision at significant variance with the language of this constitutional provision. All of the above cited statutes except RCW 41.06.110, however, meet this test in our opinion, and thus may be regarded as being included within the scope of this opinion.
[[Orig. Op. Page 3]]
It is true that some statutes such as RCW 43.17.020, supra, expressly require the governor to "present" his appointments to the senate for confirmation while others, emulating Article XIII, § 1,supra, do not contain this language. In these latter cases the only express requirement for submission of the names of the appointees to the senate is that appearing in RCW 43.06.030, originally enacted in 18901/ which provides as follows:
"On or before the last five days of each biennial session of the legislature, the governor must transmit to the senate a list of all appointments made by him, and not before communicated to the senate for confirmation."
We do not, however, regard this area of difference between statutes such as RCW 43.17.020 and those such as RCW 66.08.012 (along with Article XIII, § 1,supra) as being legally significant in terms of result. In our opinion, absent a statute expressly to the contrary in a given case, the jurisdiction of the senate to act upon a gubernatorial appointment requiring its consent vests when the appointment is made and is not dependent upon the formality of any sort of submission or presentation by the governor. Accord,Barrett v. Duff, 114 Kan. 220, 217 Pac. 918 (1923), a leading case on the general subject of the legal relationship between gubernatorial appointment and senatorial confirmation under constitutional provisions or statutes such as those of ours above noted.
In this case (which this office has relied upon in several previous opinions to be noted below involving the related question of whether a governor may revoke an appointment once made) the facts were as follows: An outgoing governor of Kansas, during the final year of his term, made certain appointments at a time when the legislature was not in session and which, therefore, could not be confirmed by the senate as required by law until the next legislative session. When the senate in January of the following year convened it commenced its own investigation and took the appointments under consideration since the outgoing governor had failed "to directly transmit the names" of the appointees to the senate. However this governor's successor, upon his assumption of office, attempted to revoke the appointments and to appoint other persons to the positions in question. [[Orig. Op. Page 4]] The senate then confirmed the first appointments but the new governor issued commissions to the persons appointed by him.
In quo warranto proceedings which then ensued to determine which appointees were entitled to hold the subject offices, the court (at p. 223) first observed that:
". . . The supreme executive power of the state is vested in the governor. (Const. art. I, § 3.) This executive power is continuous‑-never ending. It knows neither names nor persons. It began with the first governor, has continued ever since, and will continue unbroken so long as the constitution exists.
"It follows that, in respect to the offices in question, Governor Davis had the same power and no greater power of removal than that which would have been possessed by Governor Allen had he remained in office. . . ."
Then, the court set forth the arguments in opposition to the first governor's appointees, saying:
". . . It is strongly urged by the plaintiffs that the three appointments by Governor Allen were not effective until they were communicated by the governor directly to the senate and the senate had consented thereto; that the appointments were, in effect, nominations only which could be withdrawn, and, inasmuch as they were not communicated to the senate by the governor, the senate had no power to consider them; that it was, therefore, within the power of Governor Davis to remove the defendants; that his notification of removal created vacancies in the respective offices and that the plaintiffs, by virtue of his commissions, are entitled thereto."
To these arguments, however, the court responded as follows: (p. 236)
"We conclude that the defendants were legally appointed to their respective offices at a time when the appointing power had authority to act and their appointments have been confirmed by the senate; that no vacancy existed [[Orig. Op. Page 5]] in the respective offices at the time of the attempted appointment of the plaintiffs by Governor Davis; that it was not within the power of Governor Davis to create vacancies by revoking or canceling the commissions or appointments of the defendants; that the defendants do not hold such offices at the will of the governor; that they could not be removed except for cause and by proper proceedings; that the executive power of the governor is a continuing power not broken by succession; that when the appointee to an office, the tenure of which is declared by law, is commissioned and vested with the power and prerogatives of the office, neither the governor nor his successor can revoke the appointment; that the appointee holds the office for the remainder of the term unless rejected by the senate, dies, resigns or is removed for cause by proper proceedings; that there is no provision in our constitution or laws requiring a nomination of the defendants by the governor to the senate before appointment; that the senate was not required to wait for advice from the governor before considering such recess appointments but was entirely within its power in making investigation and basing its judgment of confirmation on the facts ascertained." (Emphasis supplied.)
We think this approach is sound, from both a policy and a legal standpoint, and would anticipate that it would be followed by our own court in a similar case. It is well settled by now that in this state the governor's act of appointment entitles the appointee to assume office immediately and perform the functions thereof, subject only to the possibility of later divestment by senatorial rejection. See, AGO written on June 3, 1949, to the Honorable Goodwin Chase, Jr., member of the state aeronautics commission (copy enclosed) in which we said:
"It has been the established practice in this state for the governor to issue an appointment and to permit the appointee to assume office and be paid for his work prior to the time that the legislature has taken action, in all of such cases. This practice, indulged in for many years by the executive, has been acquiesced in by the [[Orig. Op. Page 6]] legislature and we believe it must now be considered established that an appointment to be made by the governor by and with the consent of the senate is a complete appointment when made by the governor, subject to revocation by nonconsent of the senate. . . .Thus, the conclusion is inescapable that it is intended that the governor's appointment should be more than a mere nomination. (Emphasis supplied.)"2/
Thus it will be seen that if a governor, upon having made an appointment, could prevent a possibly adverse senate from acting on it by a mere failure to present the appointment to that body for confirmation, the apparent object of provisions such as Article XIII, § 1,supra, and like statutes could be evaded; and we doubt very much that our court would permit this to happen.2a/
Moreover, even if some form of initial presentation were required in order to give the senate jurisdiction in the first place ‑ a premise which we here reject ‑ our answer to your immediate question would be the same. In both the foregoing 1949 opinion to Goodwin Chase, Jr., and later during that same year in an opinion to then Governor Arthur B. Langlie [[AGO 49-51-158 on November 17, 1949]],3/ we advised that this governor, who had assumed office in January, 1949, could not withdraw or revoke appointments made by his predecessor, irrespective or whether or not [[Orig. Op. Page 7]] the particular appointment had yet been acted upon by the senate. Accord,Barrett v. Duff, supra. Based upon these opinions we thereafter advised State Senator Frank Connor in 1967,4/ that a failure of the senate either to confirm or reject a gubernatorial appointee at its first session following the date of the appointment did not constitute either "a rejection or a tacit approval of the appointment." In other words, the senate in such a case retains jurisdiction to act upon the appointment at its next session ‑ and even thereafter, until it has either affirmatively confirmed the appointment or has expressly rejected it ‑ except where the particular office is covered by a statute providing otherwise, as in the case of the state personnel board under RCW 41.06.110,supra.
Both because of this last noted point and because of the over-all absence, in our opinion, of any legal necessity for an appointment to be formally "submitted" to the senate in the first place in order for that body to acquire jurisdiction, we answer your question in the negative. It is not necessary for a retention of the senate's jurisdiction to confirm or reject a gubernatorial appointment under Article XIII, § 1, supra, or a similar statutory provision that the appointment, where not acted upon at the first session following its occurrence, be "resubmitted" by the governor for action at an ensuing session.
We trust the foregoing will be of assistance to you.
Very truly yours,
Philip H. Austin
Deputy Attorney General
*** FOOTNOTES ***
1/Section 3, p. 629, Laws of 1890.
2/Accord, opinion dated January 6, 1965, to State Senator Nat Washington, in which we advised that a member of the highway commission who has been appointed by the governor but who had not yet been confirmed by the senate was entitled to assume and continue in office, subject only to divestment by senatorial rejection.
2a/ Lest there be concern that without some form of physical presentation of an appointee's name the senate will be without notice thereof adequate to act upon the appointment, we would call to your attention the following requirement of RCW 43.06.020:
"The governor must cause to be kept the following records:
". . .
"Third, a register of all appointments made by him with date of commission, name of appointee and name of predecessor, if any."
3/Opinion dated November 17, 1949, copy enclosed.
4/Opinion dated February 27, 1967, copy enclosed.