AGO 1985 No. 6 - Mar 1 1985
OFFICES AND OFFICERS ‑- STATE ‑- HUMAN RIGHTS COMMISSION ‑- GOVERNOR ‑- LEGISLATURE ‑- TENURE OF HUMAN RIGHTS COMMISSION CHAIRPERSON
Under the provisions of RCW 49.60.050 the Governor may designate as chairperson of the Washington State Human Rights Commission any member thereof, notwithstanding a previous Governor's designation of a different sitting commissioner as chairperson.
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March 1, 1985
Honorable George Fleming
State Senator, 37th District
312 Legislative Building
Olympia, Washington 98504
Honorable Phil Talmadge
State Senator, 34th District
432 Public Lands Building
Olympia, Washington 98504
Cite as: AGO 1985 No. 6
By recent letter you directed our attention to the provisions of RCW 49.60.050, relating to the Washington Board Against Discrimination (now known and designated as the "Washington State Human Rights Commission" pursuant to § 2, chapter 52, Laws of 1971, 1st Ex. Sess.). That statute reads, in full, as follows:
"There is created the 'Washington state board against discrimination,' which shall be composed of five members to be appointed by the governor with the advice and consent of the senate, one of whom shall be designated as chairman by the governor."
You then asked for our opinion on the following question:
"Under the cited statute, may the Governor designate as chairman any member the Governor wishes notwithstanding a previous Governor's designation of a different sitting commissioner as chairman?"
[[Orig. Op. Page 2]]
We answer your question in the affirmative.
Also to be noted, in connection with your question, is RCW 49.60.060 which reads:
"One of the original members of the board shall be appointed for a term of one year, one for a term of two years, one for a term of three years, one for a term of four years, one for a term of five years, but their successors shall be appointed for terms of five years each, except that any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he succeeds.
"A member shall be eligible for reappointment.
"A vacancy in the board shall be filled within thirty days, the remaining members to exercise all powers of the board.
"Any member of the board may be removed by the governor for inefficiency, neglect of duty, misconduct or malfeasance in office, after being given a written statement of the charges and an opportunity to be heard thereon."
Thus, of course, there can be no doubt that members of the Human Rights Commission serve fixed terms, as such‑-removable only for cause. In addition, by virtue of a 1981 amendment to RCW 49.60.050, supra, their appointments to the Commission are now subject to Senate confirmation. See, § 9, chapter 338, Laws of 1981.
But, by the same token, there is clearly nothing in the subject statutes which purports to say that a particular member of the Commission who the Governor has designated as chairman is, as a consequence, to continue serving inthat capacity as well‑-for the remainder of his or her term as a member of the Commission. "Cause," as defined in RCW 49.60.060, is necessary in order to remove a member from the Commission. As we read the provisions of RCW 49.60.050, supra, however, the tenure of a Commission member as chairman is entirely dependent upon the will of the Governor from time to time‑-whoever that Governor may be.
[[Orig. Op. Page 3]]
The basic point, quite simply, is that two distinct functions are involved. The Governorappoints individuals to the Human Rights Commission for statutorily fixed terms, subject to Senate confirmation. And then, from time to time, the Governor designates one of the individuals so appointed to serve as chairman of the Commission. But it is the appointment, and not the designation, which is subject to Senate confirmation.
We are aware of the fact that, in the particular situation giving rise to your request, the Journal of the Senate speaks of ". . . the apointment [appointment], of Symone B. Scales as chairman of the Human Rights Commission . . ." See, Senate Journal, 1981, pages 867 and 403. The use of that terminology, in turn, appears to have stemmed from then Governor Spellman's transmittal letter to the Senate, dated November 5, 1981, which, as set forth on page 11 of the same Senate Journal, read, in material part, as follows:
"I have the honor to submit the following appointment, subject to your confirmation:
"MS. SYMONE B. SCALES, appointed August 26, 1981, for a term ending June 17, 1986, succeeding Winnefred Duncan as Chairman of the Human Rights Commission."
By that letter, however, the Governor was merely identifying the position on the Commission to which he was appointing Ms. Scales; i.e., as the position vacated by the member of the Commission who previously served as chairman. Moreover, in any event, even if the Senate somehow also thought it was confirming the Governor's designation of the appointee as chair of the Commission that still would make no difference. A Governor may, of course, remove at will even one who is subject to Senate confirmation (and who has been confirmed) where the position from which the person is being removed does not carry with it a fixed term; e.g., the Chief of the State Patrol, the Directors of Commerce and Economic Development, OFM, Ecology, etc. Thus, the determining factor is not that of Senate confirmation but, rather, it is the presence or absence of a fixed term. And, while the legislature has provided for fixed terms for members of the Human Rights Commission it has not so provided for the Governor's designee as chairman.
[[Orig. Op. Page 4]]
We trust that the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
PHILIP H. AUSTIN
Senior Deputy Attorney General