OFFICES AND OFFICERS ‑- DIRECTOR OF LABOR AND INDUSTRIES AUTHORITY TO APPOINT CHAIRMAN OF APPRENTICESHIP COUNCIL

OFFICES AND OFFICERS ‑- DIRECTOR OF LABOR AND INDUSTRIES AUTHORITY TO APPOINT CHAIRMAN OF APPRENTICESHIP COUNCIL.

The director of labor and industries has no legal authority to appoint the supervisor of industrial relations as chairman of the apprenticeship council.

The proceedings of the meetings held while such appointee was chairman are presumably valid and in this instance are valid since he did not participate in or cast any votes at the meetings.

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                                                                   June 12, 1958

Honorable P. M. O'Brien
Director
Department of Labor & Industries
General Administration Building
Olympia, Washington                                                                                      Cite as:  AGO 57-58 No. 202

Dear Sir:

            By letter, previously acknowledged, you have asked the advice of this office on two questions which we, for convenience, paraphrase as follows:

            (1) Does the director of the department of labor and industries have the power to appoint the supervisor of industrial relations as "chairman" of the apprenticeship council?

            (2) If the appointment was invalid, were all of the proceedings of the apprenticeship council of the meeting of February 27 and 28, 1958, invalid.

            We answer question (1) in the negative.  The answer to question (2) is contained in the analysis.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            The statute, RCW 49.04.010, relating to the apprenticeship council provides as follows:

            "The director of labor and industries shall appoint an apprenticeship council, composed of three representatives each from employer and employee organizations, respectively.

            "The terms of office of the members of the apprenticeship council first appointed shall be as follows:  One representative each of employers and employees shall be appointed for one year, two years, and three years, respectively.  Thereafter, each member shall be appointed for a term of three years.  Each member shall hold office until his successor is appointed and qualified, and any vacancy shall be filled by appointment for the unexpired portion of the term.

            "The state official designated by the state board for vocational education to be in charge of trade and industrial education and the state official who has immediate charge of the state employment service shall be ex officio members of the council, without vote.

            "Each member of the council, not otherwise compensated by public moneys, shall be reimbursed for transportation and expenses, and shall be paid not more than five dollars for each day spent in attendance at meetings of the council."

            Where the language of an act is unambiguous a departure from the plain meaning is not justified by any consideration or consequence of public policy.  State v. Miller, 72 Wash. 154, 129 Pac. 1100.  In addition, our court has repeatedly held that a statute will be held to mean exactly what it says and rules of construction will not be applied where the language of the statute is free of ambiguity.  Shelton Hotel Co. Inc. v. Bates, 4 Wn. (2d) 498, 104 P. (2d) 478.

            We have been advised that the appointment in question made by you as director of labor and industries was done on the basis of the language found in RCW 49.04.030, which provides in part as follows:

             [[Orig. Op. Page 3]]

            "Subject to the confirmation of the state apprenticeship council, the director of labor and industries shall appoint a director of apprenticeship whose salary shall be four thousand two hundred dollars per year.  Under the supervision of the director of labor and industries and with the advice and guidance of the apprenticeship council, the director of apprenticeship shall:

            ". . .

            ". . .The director of labor and industries may appoint such other personnel as may be necessary to aid the apprenticeship council and the director of apprenticeship in the execution of their functions."  (Emphasis supplied.)

            We think it is clear that the personnel referred to in the foregoing section can only refer to clerical and technical personnel which may be needed to assist the apprenticeship council and the director of apprenticeship in the execution of their functions as prescribed by law.  Since the provision in question is clear and unambiguous any attempt to enlarge the scope of the word "personnel" would be in effect a usurpation of the functions of the legislature.

            Accordingly it is our recommendation that the matter be referred to the next session of the legislature for the enactment of specific legislation would spell out the manner of appointment of a chairman to the apprenticeship council as well as his rights and duties as chairman.

            In answer to your first question, therefore, it is our opinion that the director of labor and industries has no legal authority to appoint the supervisor of industrial relations as "chairman" of the apprenticeship council.

            The answer to the second question is contained in the following analysis:

            "The general rule is that the acts of a de facto officer are valid as to third persons and the public until his title to office is adjudged insufficient, and such officer's authority may not be collaterally attacked or inquired into by third persons affected.  The practical effect of the rule is that there is no difference between the acts of de facto and de jure officers so far as the public and third persons are concerned.  The principle is placed  [[Orig. Op. Page 4]] on the high ground of public policy, and for the protection of those having official business to transact, and to prevent a failure of public justice.  Third persons, from the nature of the case, cannot always investigate the right of one assuming to hold an important office.  They have a right to assume that officials apparently qualified and in office are legally such, even though a contest is pending.  Furthermore, the de facto officer is estopped from taking advantage of his own want of title."  (43 Am.Jur., Public Officers, 241, § 495.)

            Therefore, if the appointee was a de facto officer, the proceedings of the board would be valid as to third persons, within the meaning of the above rule.

            InNational Bank of Washington v. McCrillis, 15 Wn. (2d) 345, 361, 130 P. (2d) 901, the court acknowledged the following tests on whether someone is ade facto officer, quoting from Walcott v. Wells, 21 Nev. 47, 24 Pac. 367:

            "'InState ex rel. Corey v. Curtis, 9 Nev. 338, we had occasion to examine and discuss, to a limited extent, the question as to what constitutes an officerde facto.  The rules taken from the authorities were there announced as follows:  (1) One who has thereputation of being the officer he assumes to be, and yet is not a good officer in point of law.  (2) One who actually performs the duties of an office, with apparent right, and under claim and color of an appointment or election.  (3)One who has the color of right or title to the office he exercises.  (4) One who has the apparent title of an officer de jure.'  (Italics ours.)"

            In the immediate case the first three tests have definitely been met, and the only question is whether the fourth test has been met as well.  An invalid appointment is frequently the basis of a de facto office.  However, according to 43 Am.Jur., Public Officers, 228, § 475:

            "There is an irreconcilable conflict of authority on the proposition as to whether or not it is possible to have a de facto officer in the absence of any de jure office. . . ."

             [[Orig. Op. Page 5]]

            The Washington court has, to our knowledge, not spoken directly on this point.  Therefore, it must be conceded that there is a possibility that the Washington supreme court would hold that since there never was ade jure office in this case, there could be node facto officer in the position in question.

            Other cases, which seem just as well reasoned, hold contra.  In one case which is somewhat analogous, the court held that where the appointing officer honestly misconstrued the legislation and the appointee honestly performed the functions of the office before actual creation of the office, the person prematurely appointed had de facto status.  State ex rel. Bockmeier v. Ely, 16 N.D. 569, 113 N.W. 711.

            In any event, it is our opinion that the proceedings on the dates in question are valid in view of the fact that we have been advised that the appointee in question did not participate in, or cast any vote at, the proceedings of the council at those meetings.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

HERBERT FULLER
Assistant Attorney General