EFFECT OF ACTION BY SENATE RETURNING ALL UNCONFIRMED APPOINTEES TO THE GOVERNOR

OFFICES AND OFFICERS ‑- STATE ‑- GOVERNOR ‑- LEGISLATURE ‑- EFFECT OF ACTION BY SENATE RETURNING ALL UNCONFIRMED APPOINTEES TO THE GOVERNOR

Where, at the request of a new governor, the Senate voluntarily returns the names of those unconfirmed appointees then pending before it, the appointees involved are not thereafter entitled to continue in office until the Governor makes new appointments.

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                                                                   April 22, 1981

Honorable A. L. "Slim" Rasmussen
St. Sen., 29th District
407-B Legislative Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1981 No. 10

Dear Sir:

            By recent letter you requested our opinion on the following question:

            "If an individual is reappointed to the board of trustees of a community college but, at the next session of the legislature, the Senate returns all unconfirmed appointments at the request of the new Governor, may that individual nevertheless serve on the board until the Governor makes a new appointment?"

            We answer the foregoing question in the negative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            RCW 28B.50.100 establishes a community college board of trustees for each community college district in this state, provides for the initial appointment of such trustees, and then states that:

             [[Orig. Op. Page 2]]

            ". . .

            "The successors of the trustees initially appointed shall be appointed by the governor to serve for a term of five years except that any person appointed to fill a vacancy occurring prior to the expiration of any term shall be appointed only for the remainder of the term.  Each member shall serve until a successor is appointed and qualified.

            ". . ."

            By reason of Article XIII, § 1 of the Washington Constitution, all persons so appointed are subject to confirmation by the State Senate.  They may, however, actually commence serving prior to their confirmation since, as we explained in AGLO 1973 No. 33, copy enclosed,

            ". . . 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. . . ."

            We have also previously concluded that once the Governor has made an appointment which is subject to Senate confirmation and has submitted the appointee's name to the Senate, neither he or his successor may thereafterunilaterally withdraw the name thus submitted and submit a new one in its place.  See, opinion dated June 3, 1949, to the Washington State Aeronautics Commission, a copy of which is also enclosed.  In so concluding we there quoted with approval from the case of Barrett v. Duff, 114 Kan. 220, 217 Pac. 918 (1923), as follows:

            "'The power of the governor having been exercised, he had no further control over the respective offices unless and until the appointees had been rejected by the senate,'"

             [[Orig. Op. Page 3]]

            However, the fact that a governor may not thus unilaterally withdraw the names of appointees previously submitted to the Senate does not mean that the Senate and the Governor, acting jointly, may not take action having the effect of revesting the Governor with authority to make a new appointment.  Clearly the Senate, at the request of either the same governor who made the initial appointment or a new, incoming governor who desires to make a change, may affirmatively and expressly reject a prior, unconfirmed, appointee who the Governor wants to replace.  Or, as was done in January of 1977 and again this year, the Senate may simply acquiesce, voluntarily, in the Governor's request for a return of names of all unconfirmed appointees then pending before it.  And the Governor, in turn, may then make and submit new appointments to replace any or all of the previous appointees involved.

            We now come to the issue raised by your present question.  In the event that the Senate thus acquiesces in a new governor's request for a return of the names of the then unconfirmed appointees of his predecessor‑-here, specifically, community college trustees under RCW 28B.50.100, supra‑-and thereby revests the Governor with the authority to make new appointments, may the prior appointees nevertheless continue to serve until the Governor actually appoints their successors?

            In answering this question, let us first dispose of the reference in your letter to the "hold over" language appearing in the portion of RCW 28B.50.100 which we have above quoted;i.e., so much thereof as provides that,

            ". . . Each member shall serve until a successor is appointed and qualified."

            Read in context, however, it is our opinion that this provision only relates to, and serves potentially to extend, the specified five‑year terms of office earlier provided for in the statute.  A given individual has been appointed to fill such a term, or, perhaps, an unexpired portion thereof.  However, at the end of that term, through inadvertence or otherwise, no successor is appointed.  In that instance, the prior appointee continues to serve ". . . until a successor is appointed and qualified."  The term for which he or she was initially appointed, in effect, is extended.

             [[Orig. Op. Page 4]]

            But here, we are not dealing with that sort of situation.  Rather, the question now before us necessarily assumes that the appointments for the next ensuing terms were made by the governor then in office; and thereafter, that the Senate, instead of confirming, returned the names of those appointees to the new governor for possible replacement.  And, accordingly, the statutory language which you have referred to in your letter, as above quoted, does not afford a basis for concluding that, notwithstanding the Senate's action, the prior appointees may continue to serve until the Governor actually makes a new appointment.

            Nor, further, can we conceive of any other legal basis for reaching such a conclusion and, thereby, answering your question in the affirmative.  The Senate's action, in voluntarily acquiescing in the Governor's request for a return of the names of all unconfirmed appointees then pending before it, may be characterized in either of two ways; namely, (1) as an implicit rejection of those appointees or (2) as a recision of the Governor's earlier act of submission of the names of those appointees to the Senate.  Either way, however, the appointment of successors is not also required to occur in order to put the earlier appointees out of office.  If rejection is the proper characterization of the Senate's action, then, obviously, the prior appointees cease to have any de jure status as soon as the Senate acts‑-by returning the names to the Governor.  Under a recision theory, on the other hand, they would cease to serve as soon as the governor notifies them of his intent to replace them‑-even though the actual appointment of successors may be delayed.

            We therefore answer your question, as above stated in the negative.  It is hoped that the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General