OFFICES AND OFFICERS ‑- STATE ‑- GOVERNOR'S ADVISORY COUNCIL ON NUCLEAR ENERGY AND RADIATION ‑- EX OFFICIO MEMBERS ‑- VOTE ‑- SUBSTITUTES ‑- QUORUM

OFFICES AND OFFICERS ‑- STATE ‑- GOVERNOR'S ADVISORY COUNCIL ON NUCLEAR ENERGY AND RADIATION ‑- EX OFFICIO MEMBERS ‑- VOTE ‑- SUBSTITUTES ‑- QUORUM.

(1) The four ex officio members on the governor's advisory council on nuclear energy and radiation have the same right to vote as the other appointed members of the council.

(2) If one of the ex officio members of the council is unable to attend the council meeting any person who attends at the request of the member is not entitled to cast an official vote on any matter before the council.

(3) Since a quorum of the council is not prescribed by statute the common-law rule that a majority of any body constitutes a quorum for the transaction of business is applicable and the council itself therefore may not define what is necessary to constitute a quorum.

                                                              - - - - - - - - - - - - -

                                                                 August 15, 1962

Honorable Joseph L. McCarthy
Chairman, Governor's Council on
Nuclear Energy and Radiation
The Graduate School
University of Washington
Seattle 5, Washington

                                                                                                              Cite as:  AGO 61-62 No. 156

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on a number of questions concerning organization of the Governor's Advisory Council on Nuclear Energy and Radiation as follows:

            "1. Does each of the fourex officio members of the Council have the right to vote in the same way that the right exists in the other duly appointed members?

            "2. If one of theex officio members of the Council (that is one of the Directors of a State department) is unable to attend a Council meeting and asks that one of his associates attends in his place, does this representative have the right to cast an official vote in the same way as the Director himself?

             [[Orig. Op. Page 2]]

            "3. What constitutes a quorum for the Council?

            "4. If the Council itself, by majority vote of the individual andex officio members, agrees on the composition of a quorum, may this definition of the quorum be binding with respect to some or all future meetings of the council?

            "5. More specifically, the Council at its meeting held on June 21st, agreed by majority vote that a quorum for that meeting, at least, would consist of a total of six members, four of whom are individual rather than exofficio.  Our question is:  Is this definition of a quorum legally acceptable, and what steps are necessary to provide for the establishment on a permanent basis of this or some other definition of a quorum?"

            We answer question one in the affirmative, question two in the negative, and questions three, four and five as explained in the analysis.

                                                                     ANALYSIS

            You state in your letter that the Governor's Advisory Council on Nuclear Energy and Radiation provided for in Substitute Senate Bill No. 427 (chapter 207, Laws of 1961), has now been brought into being and that the questions quoted above arose at a recent meeting of the council.

            Substitute Senate Bill No. 427 (chapter 207, Laws of 1961), is codified as chapter 70.98 RCW and RCW 70.98.070 reads, in part, as follows:

            "(1) There is hereby created an advisory council on nuclear energy and radiation, hereinafter referred to as the council, consisting of seven members appointed by the governor and serving at his pleasure.  Membership on the advisory council shall include, but not be limited to, representatives from industry, labor, the healing arts, research and education.  In addition the directors of the department of health, department of labor and industries, department of agriculture, and the department of commerce and economic development shall serve as ex officio members of the  [[Orig. Op. Page 3]] council.  The governor shall designate from his appointees a member to serve as chairman of the council. . . ."

            QUESTION 1.  The statute is silent on voting rights of members of the council.

            In an opinion by this office dated January 2, 1946, addressed to Arthur L. Ringle, M.D., State Director of Health [[1945-46 OAG 520]], it was said:

            "There is nothing in said law curtailing or limiting the rights and duties of these ex-officio members of the board of managers, therefore, they shall have the same voice and vote as other members.

            "The term 'ex-officio' does not limit their powers in any way, but means that persons holding said offices shall become members without any other appointment or authority than that conferred by the office itself."

            The Court of Appeals of Kentucky cited Thompson on Corporations for the same rule inSeiler v. O'Maley, 190 Ky. 190, 227 S.W. 141 (1921) and said at 227 S.W. 143:

            "Independent of that eminent authority, we can see no logical reason nor has one been presented to us, why an ex officio member of a representative body should not have, in cases where he is not personally interested, all of the authority of other members.  In the one case his power and authority as such member is conferred upon him by that department of the sovereignty having authority to create the board because of the fact of his holding some office, while the other members receive their power and authority because of their election or appointment in the manner provided by the same governmental department.  We have no doubt but that it would be competent in the creation of the board to provide that it should be composed entirely of ex officio members, and because some of the members are selected in the manner pointed out in the law creating the board, while others are selected by the terms of the law itself, whether it be a statutory or constitutional provision cannot possibly affect the extent of the power and authority of the members.  They are each vested with full power and authority to do any and all things necessary and essential to carry out the  [[Orig. Op. Page 4]] purpose of the law in creating the board or body, whether they be ex officio members or selected in the manner provided by law.  If, as contended by appellants, an ex officio member cannot be counted in forming a quorum, we fail to see any additional reason why such a member should have the right to vote or should have his vote counted in the transaction of any other business of the body.  To our minds the rule contended for, pursued to its only logical conclusion, would result in depriving the ex officio member of all voice in the proceedings of all meetings and render his position on the board void of all effect except perhaps to entitle him to be present at the meeting.  Such an absurd consequence was never contemplated.  On the contrary, when one is made by the proper authority an ex officio member of a created body or board, it is to be presumed that those responsible for its creation had some purpose in view in designating the ex officio member.  Manifestly that purpose was to constitute that individual a member of the board or body because of his holding some office of trust, and that whoever held that office should perform, in addition to his official duties, also those incumbent upon the board of which he was made an ex officio member."

            Cf.Farrell v. Board of Health, 243 App. Div. 332, 276 N.Y.S. 907 (1935);Louisville & Jeff. Co. Plng. & Zng. Comm. v. Ogden, 307 Ky. 362, 210 S.W. (2d) 771 (1948).

            In short, the term "ex officio" refers only to the manner by which membership on the council occurs.  See, Black's Law Dictionary (4th ed.) 1951, "Ex officio."

            We answer question one in the affirmative.

            QUESTION 2.  According to the statute the council is to consist of:

            1.         Seven members appointed by the governor.

            2.         The directors of the department of health, department of labor and industries, department of agriculture and department of commerce and economic development.

             [[Orig. Op. Page 5]]

            Membership on the council results either from appointment by the governor, or by virtue of holding office as director of one of the named departments.

            Among its duties, the council is to review and evaluate policies and programs of the state relating to ionizing radiation, and make recommendations to the governor and furnish such advice as may be required on matters relating to development, utilization and regulation of the sources of ionizing radiation.  RCW 70.98.070 (2).  Considering the discretionary nature of these duties along with the fact that the act states that the directors of the departments are to be the ex officio members of the council, we are of the opinion that the legislature intended that the directors themselves should sit on the council and exercise the powers of members.  We believe that the legislature intended that these directors should contribute their special knowledge to the work of the governor's advisory council on nuclear energy.  Therefore a representative attending a meeting of the council in place of an ex officio member would not be a member of the council and would not have the right to vote.

            Starting in 1909, this office has four times considered the related questions of whether a deputy director, etc., of department A, who by statute or otherwise may exercise some or all of the powers of the director of department A, may serve on board B in place of the director, when the director of department A is made an ex officio member of board B.  The opinions were to Honorable F. P. Jameson, April 21, 1909 [[1909-10 OAG 18 to Office of State Auditor]]; Honorable Thomas G. Bush, Assistant State Highway Commissioner, September 21, 1915 [[1915-16 OAG 150]]; the Washington State Reclamation Service, January 26, 1920 [[1919-20 OAG 215]]; and to Honorable Cliff Yelle, State Auditor, January 3, 1939 [[1939-40 OAG 9]].  A copy of each opinion is attached.  Each time this office answered that the subordinate officer did not have the right, duty or authority to act as a member of the board on which his superior was an ex officio member.  We summarize the reasoning of these opinions as follows:

            When by law the director of department A is made an ex officio member of board B the positions are held by one person, but the two offices are distinct in their creation, and the duties of the one office do not necessarily have any relation to the duties of the other office.  Making a person an ex officio officer does not merge the two offices into one.  The director's connection with the board is exactly the same as if he had been appointed to membership in his individual name.  The reason for using the name of the office to identify the person who will serve as the ex officio member instead of using the name of the individual is that the boards are intended to continue for a considerable time, and it is intended that the man who now or hereafter fills the director's office shall be the one to serve on the board. Since the two offices are separate and distinct, the fact that the officer as director of department A has authority to delegate his  [[Orig. Op. Page 6]] duties does not answer the question whether the same officer has the power to delegate his duties as a member of board B.  That question can only be answered by an examination of the express and implied powers of a member of board B, and for the purpose of that question it makes no difference whether the member of board B was appointed directly or holds his office ex officio.

            We answer question two in the negative.

            QUESTIONS 3, 4 and 5.  The statute does not set out a quorum requirement of the council or expressly authorize the council to determine its own quorum.

            RCW 4.04.010 states:

            "The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state."

            InLouisville & Jeff. Co. Plng. & Zng. Comm. v. Ogden,supra, at 210 S.W. (2d) 774, the Kentucky Court of Appeals said:

            ". . . It is further conceded that under common law, or in the absence of any statute or statutory authorization, a majority of any body constitutes a quorum, for the transaction of business, and a majority of the quorum concurring is sufficient to take any particular action. . . ."

            See,McCormick v. Board of Education, Etc., 58 N.M. 648, 274 P. (2d) 299 (1954); 2 Am.Jur. (2d), Administrative Law, § 196.  The supreme court of the state of Washington has held that in the absence of a statute to the contrary the majority of an administrative body controls in deciding all matters within its jurisdiction and power.  State ex rel. Clausen v. Hartley, 144 Wash. 135, 257 Pac. 396 (1927); State ex rel. Seattle W. ‑ M. D. Co. v. Hartley, 144 Wash. 157, Pac. 402 (1927).  Ex officio members of a public body must be counted in determining the presence of a quorum.  Louisville & Jeff. Co. Plng. & Zng. Comm. v. Ogden, supra.

            Accordingly, we are of the opinion that whenever no quorum is prescribed by statute and the organization is not given the power to determine its own quorum, its quorum is a majority of its membership,  [[Orig. Op. Page 7]] (including ex officio members) and a majority of the quorum concurring is sufficient to take a particular action.

            Specifically, in answer to questions three, four and five, it is the opinion of this office that a quorum for the council consists of a majority ofall members and the council has no power to determine its quorum or to distinguish between appointive and ex officio members in determining a quorum.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

BRUCE COHOE
Assistant Attorney General