GOVERNOR -- AUTHORITY TO WITHDRAW COLLEGE APPOINTEE OF FORMER GOVERNOR

GOVERNOR -- AUTHORITY TO WITHDRAW COLLEGE APPOINTEE OF FORMER GOVERNOR

Qualified and acting college trustee, appointed by former governor, submitted to senate but not confirmed or rejected, may not be removed from office by present Governor without cause.

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                                                               November 17, 1949

His Excellency
Arthur B. Langlie
Governor of the State of Washington
Legislative Building
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 158

Dear Sir:

            We have your letter of November 3 in which you ask the following question:

            "Mr. Pemberton was appointed as trustee of the college (Western Washington College of Education) on June 23, 1947 for the term ending June 12, 1953.  Under Article XIII, § 1 of the Constitution and Rem. Rev. Stat. 4604, such appointment is made by the governor 'by and with the advice and consent of the Senate.'  His appointment was submitted to the Senate at the 1949 legislative session but that body did not act on the appointment, either by way of confirmation or rejection.  * * *

            "Can the Governor at this time withdraw Mr. Pemberton's appointment and appoint another individual to the position who would, of course, be subject to confirmation by the Senate at the next legislative session?"

            The conclusions reached may be summarized as follows:

            The appointment of June 23, 1947, may not at this time be withdrawn.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Joseph T. Pemberton was appointed a trustee by the then Governor Mon C. Wallgren during the 1945 session of the legislature to fill a vacancy in a term ending June 12, 1947.  Mr. Pemberton qualified and on the 21st day of February 1945, the senate confirmed that appointment [Senate Journal 1944-45, p. 270.]  That term having expired, Governor Wallgren, on June 23, 1947, and after the adjournment of the 1947 legislature, reappointed Mr. Pemberton for a full term of six years, and he again qualified.  This appointment was before the senate at its regular session in 1949, being the senate's first opportunity to consider the matter, but that body neither confirmed nor rejected the appointment.  Mr. Pemberton has at all times continued to discharge the duties of his office and is presently serving as chairman of the board.

            Appointment by the Governor, by and with the consent and advice of the senate, of the trustees of Western Washington College of Education is authorized by Article XIII, § 1, of the Constitution of the State of Washington which reads in part as follows:

            "Educational * * * institutions * * * shall be fostered and supported by the state, subject to such 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."

            Further authority for such appointments is contained in § 1, chapter 97, subchapter 3, Laws of 1909 [Rem. Rev. Stat. 4604] providing that:

            "The State Normal School at Cheney, the State Normal School at Bellingham, the State Normal School at Ellensburg, and such other state normal schools as may hereafter be established, shall each be  [[Orig. Op. Page 3]] under the management and control of a board of three trustees, to be known as "Board of Trustees of the State Normal School at . . . . . . . . .  Said trustees shall beappointed by the governor, by and with the advice and consent of the senate."  (Italics ours.)

            The trustees are appointed for six years.  § 2, chapter 97, subchapter 3, Laws of 1909 [Rem. Rev. Stat. 4605].

            In a recent opinion [June 3, 1949, addressed to Honorable Goodwin Chase, Jr., member, State Aeronautics Commission] based upon a set of facts substantially similar to those here presented with the exception that the Aeronautics Commissioners being members of a new board, unlike Mr. Pemberton, had not been once confirmed, we concluded that recess appointments to that commission, presented to the 1949 senate but not acted upon, may not now be withdrawn by the governor.  After citing the appropriate authorities and setting forth our reasons therefor, we determined:

            "In conclusion, the foregoing authorities incline us to the opinion that the Aeronautics Commission was appointed and legally assumed office under Governor Wallgren and the Executive had completed his act and the appointment was subject only to being voided by rejection by the legislature and could not be rescinded by the governor's successor in office.  Removal from office may now be accomplished only in the manner prescribed in § 3 of the act for inefficiency, neglect of duty or malfeasance in office.  * * *"

            While our supreme court has never passed upon this precise question as pointed out in our opinion of June 3, 1949, we feel that the result reached thereon is determinative of the issue now under consideration.  We adhere to that opinion and hold that in the present instance Mr. Pemberton's appointment is subject only to being voided by rejection by the senate and may not be withdrawn until so rejected.  Removal from office may now be accomplished only in the manner prescribed by § 1, chapter 59, Laws of 1943 [§ 4603-1 Rem. Supp. 1943] which provides a special procedure for the removal of the regents of The University of Washington, Washington State College or of The State College of Education for misconduct or malfeasance in office, whereby removal may only be accomplished pursuant to a hearing before a tribunal composed of three judges of the superior court.

Very truly yours,

SMITH TROY
Attorney General

T. H. LITTLE
Assistant Attorney General