Letter Opinion 1971 No. 074

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                                                                   May 20, 1971
 
 
 
Honorable Daniel J. Evans
Governor, State of Washington
Legislative Building
Olympia, Washington 98501                                                        Cite as:  AGLO 1971 No. 74 (not official)
 
 
Dear Governor Evans:
 
            You have requested an opinion of this office on the following question:
 
            "Are any of the members of the 42nd legislature currently eligible for appointment to the Forest Tax Committee to be established pursuant to § 18 of Substitute Senate Bill No. 849?"
 
                                                                     ANALYSIS
 
            Basically, the question of eligibility of the members of the 42nd legislature for appointment to positions on the Forest Tax Committee which § 18 of Substitute Senate Bill No. 849 [[Sub. S.B. 849]]proposes to establish is governed by Article II, § 13 of the Washington State Constitution, which 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."
 
            The issue is whether these positions would constitute "civil offices" within the meaning of this constitutional provision.  For a general discussion of this matter, we would refer you to AGO 1967 No. 32 [[to Governor on August 31, 1967]], copy enclosed, together with the recent opinion of the Washington Supreme Court in Oceanographic Comm'n v. O'Brien, 74 Wn.2d 904, 447 P.2d 707 (1968).  Both of these authorities, together with other cases cited therein, identify the five requisite elements  [[Orig. Op. Page 2]] of a civil office, to which members of the legislature may not be constitutionally appointed or elected during the term they were serving at the time of its creation, as follows:
 
            (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.
 
            In relation to these elements, you have pointed out in your letter that § 18 of Substitute Senate Bill No. 849 would create a Forest Tax Committee consisting of eleven members, four of which are to be members of the legislature (two senators, one from each political party, to be appointed by the president of the senate; two representatives, one from each political party, to be appointed by the speaker of the house of representatives).  These four legislative members are, in turn, to appoint two representatives of the timber industry and two county assessors to serve on the committee.
 
            In addition, you have pointed out the functions of approval or disapproval over certain activities of the state department of revenue in regard to the valuation of timber and timber lands which would be vested in the committee under § 7 (3) and § 11 of the bill.  Specifically § 7 (3), speaking  [[Orig. Op. Page 3]] of certain area designations and stumpage value tables which the department of revenue would be called upon to establish, states that:
 
            ". . . The area designations and stumpage value tables and any revisions thereof shall be subject to approval by the forest tax committee established pursuant to section 18 of this 1971 amendatory act.  . . ."  (Emphasis supplied.)
 
            Likewise, § 11 of the bill states that:
 
            "On or before September 1, 1971, subject to approval by the forest tax committee established pursuant to section 18 of this act, the department of revenue shall promulgate rules in accordance with chapter 34.04 RCW setting forth criteria and procedures for grading forest land on the basis of its quality, accessibility and topography.  . . ."  (Emphasis supplied.)
 
            Based upon the reasoning of AGO 1967 No. 32, supra, as well as that of our court in Oceanographic Comm'n v. O'Brien, supra, it appears to us quite clear that the appointive functions which would be vested in the four legislative members of the Forest Tax Committee by § 18 of the bill, as well as the ultimate powers of approval or disapproval over certain functions of the state revenue department which the committee as a whole would have under §§ 7 and 11, would constitute
 
            ". . . a portion of the sovereign power of government. . ."
 
            within the meaning of the five elements test of a "civil office" set forth above.
 
            Additionally, it seems equally clear to us from our review of the entire bill that the other four requisite elements of a "civil office" would also be present in the event that the bill were to be signed into law in its present form.  Accordingly, it is our best judgment that if Substitute Senate Bill No. 849 is thus signed into law,  [[Orig. Op. Page 4]] none of the current members of the 42nd legislature which created this committee will be constitutionally eligible to serve as members thereof during the remainder of their current legislative terms.
 
            We trust that the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
 
Philip H. Austin
Deputy Attorney General