LEGISLATURE - MEMBERS - ELIGIBILITY FOR APPOINTMENT TO CIVIL OFFICE

LEGISLATURE - MEMBERS - ELIGIBILITY FOR APPOINTMENT TO CIVIL OFFICE.

(1) No member of the 40th legislature is eligible, during his current term of office, to serve as a member of the board of trustees of Southwestern Washington State College or as a member of the Washington State Arts Commission.

(2) Members of the 40th legislature are not constitutionally ineligible for appointment, during their present terms of office, to          

(a) the Education Commission of the States;

(b) the Judicial Council;

(c) the 1967 World Fair Commission; and

(d) the Senate, House, or Joint Boards of Legislative Ethics.

(3) In those instances where legislators are constitutionally ineligible to serve, during the remainder of their present terms, in a civil office created by the 40th legislature, the appointing authority may fill the position by appointment of some other person who is eligible to serve in the office instead of the one determined to be ineligible.

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                                                                 August 31, 1967

Honorable Daniel J. Evans
Governor of the State of Washington
Legislative Building
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1967 No. 32

Dear Sir:

            This is written in response to your recent request for an opinion of this office as to the eligibility of members of the 40th legislature for appointment to positions on the following boards or commissions:

            (1) Board of trustees, Southwestern Washington State College;

            (2) Oceanographic Commission of Washington;

            (3) Washington State Arts Commission;

             [[Orig. Op. Page 2]]

            (4) The Judicial Council;

            (5) The Education Commission of the States;

            (6) The 1967 World Fair Commission;

            (7) The Senate, House or Joint Boards of Legislative Ethics.

            Additionally, you have asked for advice as to the manner of filling these positions in the event that they cannot presently be filled by the appointment of legislators, and we will comment on this issue in the body of the opinion.

            We answer your primary questions as follows:

            (1) No member of the 40th legislature is eligible, during his current term of office, to serve as a member of the state college board of trustees or of the state arts commission.

            (2) Because we have been formally requested by the oceanographic commission to cause the question of legislator eligibility for appointment to that commission to be litigated in the courts, and we thus anticipate the filing of a lawsuit in the near future, we have, with your approval, deleted that question from the scope of this opinion.

            (3) With respect to the remaining positions, we conclude that legislators are eligible for immediate appointment thereto, for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Basically, the question of eligibility of members of the 40th legislature for appointment to positions on the several boards or commissions named in your request is dependent upon the applicability of Article II, § 13, of the Washington state constitution.  This section reads as follows:

            "No member of the legislature, during the term for which he is elected, shall be appointed or elected to any civil office in the state, which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected."

            We do not understand that anything done by the 40th legislative session increased the emoluments of any of the positions with respect to which you have inquired.  Thus, we are here concerned  [[Orig. Op. Page 3]] with only so much of Article II, § 13, as prohibits a member of the legislature, during the term for which he is elected, from being appointed to ". . . any civil office in the state, which shall have been created, . . . during the term for which he was elected."  Accordingly, the analytical questions to be asked, as to each of the positions listed, are:

            (1) Is the position a "civil office" within the meaning of Article II, § 13, supra?

            (2) If so, was the position created by the 40th legislative session?

            If both questions are answered in the affirmative, then it follows that no member of the 40th legislature is eligible, during his current term of office, for appointment to the particular office.

            One further preliminary remark would likewise appear to be in order.  As will be seen, in all instances save one (Board of Trustees, Southwestern Washington State College), the 1967 legislative acts relating to the positions you have listed contain express requirements that the positions be filled by the appointment of legislators.  At first blush, therefore, it might appear that in order to answer your questions, we would have to determine the constitutionality of the provisions of duly enacted statutes -contrary to our long-standing policy not to pass upon the constitutionality of an act once it has been passed by the legislature.1/

             [[Orig. Op. Page 4]]

            However in the instant case, it becomes evident upon close analysis of Article II, § 13,supra, that we may fully consider and answer your questions -even as to the positions which are required to be filled with legislators -without conflicting with this policy.  There is nothing in this constitutional provision which says that the legislature cannot create a civil office and provide that it shall be filled at sometime in the future by a person who is a member of the senate or house of representatives.2/   The constitutional ban is simply against a member of the particular legislative session which created the office from being elected or appointed to serve in such office during the remainder of the legislative term which he was serving at the time the office was created or its emoluments were increased.  See,State ex rel. O'Connell v. Dubuque, 68 Wn.2d 553, 413 P.2d 972 (1966); andState ex rel. French v. Clausen, 107 Wash. 667, 182 Pac. 610 (1919).

            Thus, we may approach your opinion request with a view simply to determining the constitutional eligibility of members of the 40th legislature for immediate appointment to the positions in question.  To the extent that we conclude in the negative as to a particular position which the statuterequires be filled by the appointment of a legislator, we further conclude that the appointing authority may fill the position by appointment of some other person who is eligible to serve in the office instead of the one determined to be ineligible.  Accord,State ex rel. French v. Clausen, supra.  Of course, if membership in the legislature is not a requisite to appointment -as in the case of the Southwestern Washington State College Board of Trustees - the appointment can likewise be immediately made of a constitutionally eligible person.

            In considering the question of legislator eligibility for immediate appointment to the positions in question, we are cognizant of the well-established rule that provisions such as Article II, § 13, are to be strictly construed, to the end that all doubts are to be resolved in favor of eligibility for office.  See,State ex rel. Carroll v. Munro, 52 Wn.2d 522, 327 P.2d 729  [[Orig. Op. Page 5]] (1958), and cases cited therein.  However, we do not believe that this rule of construction can, or should, be invoked simply as a tool to sustain legislator eligibility for appointment to a legislatively created public office (during the term created) which careful analysis demonstrates has, to any substantial degree, aspects of each of the elements of a "civil office" as these elements have been enunciated by our court and by prior opinions of this office.

            The Washington court has held that there are five elements which are indispensable to a position in order to make it a civil office.  See,State ex rel. Hamblen v. Yelle, 29 Wn.2d 68, 185 P.2d 723 (1947), and State ex rel. McIntosh v. Hutchinson, 187 Wash. 61, 59 P.2d 1117 (1936); see, also, State ex rel. Barney v. Hawkins, et al., 79 Mont. 506, 257 Pac. 411 (1927), which was quoted with approval by our court in both the Hamblen and McIntosh cases.  The five requisite elements, which will hereinafter be referred to by identifying number, are:

            (1) CREATION: It must be created by the constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature.

            (2) SOVEREIGN POWER:  It must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public.

            (3) LEGISLATIVE DEFINITION: The powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority.

            (4) INDEPENDENCE: The duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature and by it placed under the general control of a superior officer or body.

            (5) PERMANENCY: It must have some permanency and continuity and not be only temporary or occasional.3/

             [[Orig. Op. Page 6]]

            In AGO 53-55 No. 16, copy enclosed, which was issued to Governor Arthur B. Langlie on April 23, 1953, we took guidance from the court's discussion in theHamblen case and elaborated somewhat on the second of these elements by noting that:

            "The sovereign power of the government is the power to:

            "1. Make laws (legislative)

"2. Interpret laws (judicial).

"3. Administer or carry out the laws (executive)."

            In other words, in order for an office to possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public, it must possess some aspect of legislative, judicial, or executive power to be exercised for this purpose.

            In the same opinion we isolated the concept of delegated executive power and said:

            ". . . Whether or not any executive power has been delegated depends upon whether any power has been granted this body to carry out and apply the laws  [[Orig. Op. Page 7]] on the strength of no other authority than its own, within the field set aside to it by the legislature."

            Finally, we applied this test to the matter then before us - namely, the status of an agency known as the state welfare medical care committee which had been created by the 1953 legislature, and concluded as follows:

            "A reading of the statutory language quoted above reveals that no such independent authority has been delegated to the committee.  It has only two functions.  One is to 'advise' the director of health.  Advisory authority is not an exercise of sovereign power.  The other is to 'give assistance' to the director in planning and carrying out the program, and to 'assist' him in preparing and presenting his budget.

            "'Assist" or to 'give assistance' means to lend aid or help another.  See Webster's New International Dictionary, 2nd Edition.  The words clearly indicate a legislative intent that the extent of the committee's authority was to help or aid the director of health in the exercise of those sovereign powers of government delegated to him.  There is no delegation of any sovereign powers of government directly to the committee.  There is no field in which it can operate independently, nor any power which it can exercise in its own right."

            We have also given consideration, in another prior opinion, to the nature of legislative power in terms of whether an office created by the legislature has been authorized to exercise this aspect of sovereignty.  In AGO 57-58 No. 75, copy enclosed, in which we considered the status of the barber examining board which was created by the 1957 legislature, we wrote as follows:

            "As to the second requirement stated above by which a 'civil office' is determined, § 12, chapter 101, Laws of 1957, reads as follows:

            "'The examining committee may, subject to the director's approval, promulgate such rules and regulations as it deems necessary not inconsistent with this act and it shall perform all acts necessary to effectuate the purposes of this act.'

             [[Orig. Op. Page 8]]

            "The promulgation of rules and regulations is an exercise of the legislative function of government.  The legislative function is one of the three basic institutions of government, as we know it, and therefore is a part of the sovereignty of the state.  Thus, the legislature, by delegating legislative authority to the barber examining committee, has delegated a portion of the sovereign power of government.

            "Furthermore, this delegation of authority is for the 'benefit of the public,' in the words of the second necessary element, since the purpose of the committee is to aid in the regulation of barbers to make certain that those licensed to operate will not endanger the public health.  'That the legislature may enact laws for the protection of the public health and may license barbers with that end in view, is well settled.'  McDermott v. State, 197 Wash. 79.  It is a valid exercise of the police power."

            By way of contrast, we take note of the conclusion which was reached by the supreme court with respect to the State Legislative Council as created by the 1947 legislature.  InState ex rel. Hamblen v. Yelle, supra, the court decided that the positions on this body were not "civil offices" so as to preclude the immediate appointment thereto of members of the legislature which created the council, reasoning as follows:

            "If any of the five elements recited in State ex rel. Barney v. Hawkins, supra, as indispensable in any position of public employment is absent, such employment is not a public office of a civil nature.  All five elements must be present.  In the case at bar, the first element is present, but the second element is lacking.  It is not necessary to discuss the question whether the other three elements are present.  Unless there was delegated to the members of the legislative council some of the sovereign functions of government to be exercised for the benefit of the public, the position now held by each of the members of the legislative council is not a civil office.  Mechem on Public Officers, § 4, p. 5.  The council members will not legislate, execute, or administer laws enacted by them.  The only power of the legislative council is to collect information and report as to the facts it finds to the next  [[Orig. Op. Page 9]] legislature and to make its reports public.  Since it is not engaged in making laws, executing them, or administering them, no member of the council is a holder of a civil office.  SeeState ex rel. Brown v. Blew, 20 Wn.2d 47, 145 P.2d 554, and 46 C.J. 925."4/

             Having now in mind the identity and meaning of the five crucial elements which must all be present in order for a position to be a "civil office" under Article II, § 13, we may at this point turn our attention to each of the positions with respect to which you have asked our opinion.

            (1) Your first question is as to the eligibility of a member of the 40th legislature for appointment for a position on the board of trustees of Southwestern Washington State College.5/

             This new four year state college was established by chapter 47, Laws of 1967 -i.e., by the 40th legislature.  Administration of the college was vested in a board of trustees to be appointed by the governor as provided for in § 3 of the act, which reads as follows:

             [[Orig. Op. Page 10]]

            "Within thirty days after the effective date of this 1967 amendatory act, the governor shall appoint a board of trustees for Southwestern Washington State College consisting of five members.  The terms of office and date of commencement thereof of the members of the board of trustees shall be the same as prescribed by law for trustees of state colleges under RCW 28.81.020, as now or hereafter amended, except that initial appointments shall be for terms as follows: One for two years, one for three years, one for four years, one for five years, and one for six years."

            Thus, clearly, the board of trustees of Southwestern Washington State College was created by the legislature.  Unquestionably, it has a permanency and continuity and is not only temporary or occasional.  Therefore, we may conclude without further discussion that requisite elements (1) and (5) are met.

            The powers of this new board of trustees are, for the most part, set forth in §§ 4 and 5 of the 1967 act.  It is not necessary for purposes of this opinion to set forth the full text of these statutes, or of the other provisions of chapter 47, Laws of 1967, which vest the new board of trustees with basic administrative responsibility for the construction and operation of the new state college which is to be located in Thurston county.  Suffice it to say that the board has basic executive responsibility for the administration of all of the laws governing this new educational facility -essentially on a par with the administration of the long-established Central Washington State College, Eastern Washington State College and Western Washington State College.  On this point, § 5 of the act specifically states that:

            ". . . All statutes pertaining to the existing state colleges shall have full force and application to Southwestern Washington State College."

             [[Orig. Op. Page 11]]

            Thus, among other powers, the board of trustees of Southwestern Washington State College, has as to its institution, all of the broad administrative powers which have been vested in each of the state college boards by RCW 28.81.050, which reads:

            "Each board of state college trustees shall have power, and it shall be its duty -First: To elect a principal [president] and such other teachers, assistants and employees as the necessities of the school may require for a period not exceeding four years.  Second: For good and lawful reasons to discharge any or all such teachers and employees.  Third:  To adopt the necessary textbooks, and to provide books of reference for the use of students and teachers, and to provide for the proper care of the same.  Fourth: To have charge of the erection of all buildings pertaining to the school, unless otherwise expressly provided, and to have the care and management of all buildings and other property belonging to the school.  Fifth:  To audit all accounts against the school, and to certify all bills, which may be allowed, to the state auditor, who shall draw warrants on the state treasurer for such amounts as he shall find to have been properly or legally allowed.  Sixth:  To purchase all supplies for the use of the school, to provide a library suited to its wants, to provide for lectures on subjects pertaining to education and the art or science of teaching, and to do such other things not forbidden by law as may become necessary for the good of the school."

            In view of these various powers and responsibilities, and of the basic status of the state college boards of trustees as chief administrators of their respective institutions, it is difficult to conceive of a clearer case involving the presence of the three remaining requisite "civil office" elements.  These boards are unquestionably vested with a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public -i.e., the power to administer  [[Orig. Op. Page 12]] the public educational institutions under their jurisdiction.6/   Their powers and duties are defined, directly, as well as impliedly, by the legislature.  Lastly, their duties are to be performed independently and without control of a superior power, other than the law.  Elements (2), (3) and (4) are thus as evidently present as are elements (1) and (5), previously noted.

            Therefore, it follows that no member of the 40th legislature which created the new college board of trustees is, during his current term of office, constitutionally eligible for appointment to the board of trustees of Southwestern Washington State College.

            (2) For the reasons indicated at the outset, we pass over the Oceanographic Commission of Washington (created by chapter 243, Laws of 1967) and turn next to the Washington State Arts Commission.  We first note that this body, in its original form, was actually created some years ago by chapter 301, Laws of 1961.  Section 2 of that act provided as follows:

            "There is hereby established a Washington state arts commission.  The commission shall be composed of twenty-one members appointed by the governor.  Members shall be appointed representing the various categories of the arts including architecture, painting, sculpture, music, landscape architecture, crafts, literature, graphic arts, theatre arts and dance.  The governor shall consider nominations for membership from architectural, art, music, literary and other cultural organizations.  Members shall be selected where practicable from the various geographical areas of the state."

            However, this section was amended by § 3, chapter 125, Laws of 1967, enacted by the 40th legislature, to add a requirement that ". . . two members shall be members of the legislature,  [[Orig. Op. Page 13]] one to be appointed from the senate and one to be appointed from the house of representatives. . . ."

            In addition, the 1967 act vested the arts commission with certain powers which it did not previously have when, by §§ 1 and 2, chapter 125, Laws of 1967, the legislature provided:

            Section 1:

            "The commission may develop, promote and administer any activity, project, or program within or without this state which is related to the growth and development of the arts and humanities in the state of Washington and may cooperated with any person or public or private agency to this end."

            Section 2:

            "The commission may select and employ a full time executive secretary, who shall receive no other salary and shall not be otherwise gainfully employed.  Subject to the provisions of chapter 41.06 RCW, the commission may also employ such clerical and other assistants as may be reasonably required to carry out its functions and shall fix their compensation."

            By comparison, prior to 1967, the function of the arts commission was purely advisory -pursuant to § 5, chapter 301, Laws of 1961 (RCW 43.46.050), which provided:

            "The commission shall meet, study, plan, and advise the governor, the various departments of the state and the state legislature and shall make such recommendations as it deems proper for the beautification and cultural development of the state of Washington."

            It is our opinion that pursuant to §§ 1 and 2, chapter 125, Laws of 1967, the arts commission, which previously exercised no delegated sovereign function, thereby acquired delegated executive powers (to develop, promote and administer any activity, project, or program which is related to the growth of the arts and humanities in the state, and to employ such personnel as may be necessary to carry out these functions) causing it to become a "civil office."  Requisite elements (1) (created by the legislature); (3) (exercising powers  [[Orig. Op. Page 14]] defined by the legislature); (4) (independent performance); and (5) (continuity) were present from the outset in 1961.  Requisite (2) was added by the 1967 act -which also provided that henceforth, two of the positions on the arts commission are to be filled by the appointment of legislators.

            Accordingly, we regard the 1967 act -passed by the 40th legislature -as having created a "civil office" (by transformation of a purely advisory body into one exercising delegated sovereignty).  Therefore, we must conclude that no member of the 40th legislative session is eligible, during his current term, for appointment to this commission.  In accordance withState ex rel. French v. Clausen, supra, the two legislator positions in question may be filled by the appointment of other eligible persons instead.

            (3) The next agency which you have mentioned -the Judicial Council -was also created some years ago -initially by chapter 45, Laws of 1925, Ex. Sess.  The act has, since the outset, contained a requirement that two members of the legislature be included on the council.  See, § 1, chapter 45, Laws of 1925, Ex. Sess., (cf. RCW 2.52.010).  This section was substantially amended in 1961, by § 1, chapter 271, Laws of 1961, to add two members of the state senate and two members of the state house of representatives to the membership on the council.  This was accomplished by adding new positions.

            This same pattern was repeated again by the 40th legislature, when, by § 1, chapter 124, Laws of 1967, it provided that henceforth there shall be three members of the senate and three members of the house of representatives on the judicial council.  Thus, it appears clear that the 40th session did create the two new positions on the council which it has required be occupied by legislators.

            However, a complete review of the statutes pertaining to the activities of the judicial council reveals that it is purely an advisory body exercising no delegated sovereign power.7/   None of the recommendations of the council with respect to the administration of justice and the transaction of judicial business can become operative without either the promulgation of rules by the supreme court or the enactment of laws of the legislature.  The mere presence of a subpoena power -such as is  [[Orig. Op. Page 15]] granted by RCW 2.52.070 -does not cause the office to become a civil office.  See,State ex rel. Hamblen v. Yelle, supra.

            Thus, on the basis of AGO 53-55 No. 16, supra, and the reasoning thereof, we find no constitutional obstacle to the appointment of members of the 40th legislature to either of the new positions on the judicial council which were created by chapter 124, Laws of 1967.

            (4) We reach the same conclusion with respect to the education commission of the states, which was created by joint action of the 40th Washington legislature and the legislatures of other states which are parties to the compact for education.  See, chapter 83, Laws of 1967.  This act, like several of the others which we have noted, does require that certain of the positions be filled by members of the legislature.  However, the powers of the commission are purely advisory, as will be observed from a reading of Article IV, § 1, of the statute in its entirety.  Thus, without consideration of any of the other requisite elements, we can say that in any event requisite element (2) is lacking, so that there is no constitutional obstacle to the placement of a member of the 40th legislature on this interstate commission.

            (5) Similarly, the functions of the world fair commission which was created by chapter 138, Laws of 1967, Ex. Sess., are advisory in nature.  This new world fair commission was created by chapter 138, Laws of 1967, Ex. Sess., and consists of nine members who were to be selected prior to the adjournment of the 40th session of the legislature as follows:

            ". . . Three by the governor, of whom one shall be the director of the department of commerce and economic development and who shall be designated by the governor as chairman of the commission, two senators (being one from the senate majority and one from the senate minority) by the president of the senate, who shall also be a member, and two representatives (being one from the house majority and one from the house minority) by the speaker of the house of representatives, who shall also be a member, to serve until January 6, 1969. . . ."

            The function of the 1967 world fair commission is set forth in full in § 3, of the act, as follows:

            "The commission shall make complete studies and  [[Orig. Op. Page 16]] investigations concerning the feasibility and desirability of state participation in the world exposition of 1970.  The commission shall file a report of its conclusions and recommendations regarding participation by the state of Washington in such world exposition to the 1969 legislature.  The commission shall, in the event that it deems participation desirable include in its report ways and means whereby the state's participation in the world exposition of 1970 may be implemented, and shall prepare the legislation necessary therefor.  Copies of said report shall be submitted to the governor, the president of the senate and the speaker of the house of representatives by November 1, 1968.  The commission may employ such staff and personnel as is necessary to carry out its duties."

            Compare again,State ex rel. Hamblen v. Yelle, supra, in which our court held that the legislative council did not comprise civil offices within the meaning of Article II, § 13, of the constitution, but was rather merely a formalized legislative interim committee.  It will be recalled that in reaching this conclusion, the court said:

            ". . . The council members will not legislate, execute, or administer laws enacted by them.  The only power of the legislative council is to collect information and report as to the facts it finds to the next legislature and to make its reports public.  Since it is not engaged in making laws, executing them, or administering them, no member of the council is a holder of a civil office. . . ."  (29 Wn.2d 68, 76.)

            (6) Finally, you have listed the boards of legislative ethics which were created by chapter 150, Laws of 1967, Ex. Sess.

            Section 1 of the act creates an eight-member board of ethics for each house of the legislature -consisting in each case of four members of the particular house (two from each party caucus) and four lay members, two of whom are to be selected by each caucus chairman.  These boards are denominated, in their separate capacities, the senate board of legislative ethics and the house board of legislative ethics.  In their combined capacity, the denomination "joint board" is used.

             [[Orig. Op. Page 17]]

            Section 6 provides, in material part, that:

            "The boards jointly shall:

            "(1) Prepare for the adoption by the forty-first legislature a code of ethics to govern the conduct of the members and employees thereof, and may from time to time present to the legislature amendments or revisions to the code. . . .

            "(2) To recommend other legislation and other action relating to legislative ethics.

            "(3) Investigate possible unethical conduct of employees of legislative interim committees in the same manner as hereafter specified for employees of one house."

            It seems clear that no exercise of delegated sovereignty is involved in the performance of these duties of the joint board.  Nor do we find any such authority among the powers granted to the separate boards by § 7, which provides:

            "Each board shall have the following powers, duties and functions:

            "(1) Upon the request of any member of its own house or whenever in a board's judgment the public interest requires, to render advisory opinions with regard to questions arising under the code of legislative ethics or statutes governing legislative ethics or conduct, or other issues involving legislative ethics. . . .

            "(2) Whenever in a board's judgment the public interest requires, to investigate possible unethical conduct by one or more members of its own house or by a legislative employee of its own house as to violations of the code of legislative ethics or statutes governing legislative ethics. . . ."

            The absence of a sovereign power, exercised independent of any other body, is made clear by the remaining portions of this section, which read:

            "(e) All testimony, documents, records, data, statements or information received by a board in  [[Orig. Op. Page 18]] the course of any investigation shall be held private and confidential except in the course of a public hearing.  If the board shall make a finding of unethical conduct, it shall transmit its findings and recommendations as provided in subsection (f) of this section.