STATUS AS AGENCY OF THE EXECUTIVE BRANCH OF STATE GOVERNMENT

OFFICES AND OFFICERS ‑- STATE ‑- OCEANOGRAPHIC COMMISSION ‑- STATUS AS AGENCY OF THE EXECUTIVE BRANCH OF STATE GOVERNMENT

The oceanographic commission is an agency of the executive branch of state government and not a legislative interim committee.

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

                                                                    July 30, 1974

Honorable A. L. "Slim" Rasmussen
State Senator, 29th District
5415 A
Tacoma, Washington 98408                                                                                                               Cite as:  AGLO 1974 No. 73

Dear Sir:
 
            This is written in response to your recent letter requesting our opinion as to whether the oceanographic commission of Washington is an agency of the executive or the legislative branch of government.
 
            We answer your question in the manner set forth in the following analysis.
 
                                                                     ANALYSIS
 
            As you know, the oceanographic commission of Washington was created by chapter 243, Laws of 1967, now codified as chapter 43.94 RCW.  Section 2 of this act, now codified as RCW 43.94.020 reads as follows:
 
            "There is created the oceanographic commission of Washington to consist of twelve members to be selected as follows:  Five to be appointed by the governor from the public at large, at least one of whom shall be representative of higher education, one representative of private industry, and one representative of labor; three members of the state senate, no more than two of whom shall be members of the same political party, to be appointed by the president of the senate; and three members of the house of representatives, no more than two of whom shall be members of the same political party, to be appointed by the speaker of the house.  The chairman of the state marine resources and development committee shall be an ex officio member without a vote.  Members shall serve for terms of five years expiring on January 15th:  Provided, That of the members first appointed by the governor, one shall be appointed for a term of one year, one for a  [[Orig. Op. Page 2]] term of two years, one for a term of three years, one for a term of four years, and one for a term of five years.  The position of any legislative member shall be deemed vacated whenever such member ceases to be a member of the house or senate from which he was appointed.  Any vacancies occurring in the membership of the commission shall be filled for the remainder of the unexpired term by the appointive power of the position vacated.  Members shall serve without compensation but shall be reimbursed for necessary travel and other expenses incurred in the performance of their duties as commission members on the same basis as provided under RCW 44.04.120, as now or hereafter amended."
 
            The powers and functions of this agency are then set forth in § 4 (RCW 43.94.040) as follows:
 
            "The commission shall have the following powers, duties and functions:
 
            "(1) Encourage, assist, develop and maintain a coordinated program in oceanography for the benefit of the citizens of the state and the nation;
 
            "(2) Encourage private industrial enterprise to utilize the Puget Sound area as a base for oceanographic work;
 
            "(3) Promote national interest in Puget Sound as a base for national oceanographic programs;
 
            "(4) Assist in developing educational programs to provide the professional and technical graduates required by oceanographic expansion in the area;
 
            "(5) Undertake projects designed to inform the citizenry of the importance of oceanography to the development of the area;
 
            "(6) Assist in the study of problems of waterfront development, pollution, and parks and recreation areas for public use;
 
             [[Orig. Op. Page 3]]
            "(7) Accept funds, gifts, bequests, and devises from any lawful source given or made available for the purposes of this chapter, including but not limited to grants of funds made with or without a matching requirement by the federal government;
 
            "(8) Encourage, supplement and assist the development of programs under the National Sea Grant College and Program Act of 1966 by the University of Washington and other participating educational institutions of the state and region.  The programs and mission of the commission and its institute are not to be in duplication of the existing program of the University of Washington or other educational institutions of the state in oceanographic research, training or public service, or of the program developed under the National Sea Grant College and Progam Act of 1966.
 
            "(9) Make annual reports to the Washington state legislature, or to the appropriate interim committee thereof, all activities undertaken in connection with the power, duties and functions assigned in this section together with any recommendations for new legislation designed to accomplish the purposes of this chapter.
 
            "(10) Delegate in its discretion and to the extent permitted by the state Constitution, any of the powers and duties set forth in subsections (1) through (8) to the Oceanographic Institute of Washington formed pursuant to RCW 43.94.050."
 
            See, also, § 5 (RCW 43.94.050) which provides that:
 
            "To facilitate the exercise of its powers, duties and functions, the members of the commission are empowered to form a nonprofit corporation under the provisions of chapter 24.04 RCW.  The members of the commission shall be members and trustees of any such corporation as long as they are members of the  [[Orig. Op. Page 4]] commission.  The commission members of such corporation shall accept by majority vote additional members of the corporation so that the total membership thereof including commission members shall be comprised of not less than thirteen and not more than twenty members.  Any nonprofit corporation so formed shall be known and designated as the Oceanographic Institute of Washington.
 
            "The Oceanographic Institute of Washington shall, subject to the advice and consent of the commission, coordinate, promote and carry out such policies for oceanographic programs and development as may be formulated by the commission.  In the coordination, promotion and carrying out of commission policies, the institute shall have in addition to powers prescribed in chapter 24.04 RCW, the power to accept, use and expend such public funds as may be lawfully made available to it for such purposes by the federal or state governments, or any political subdivision or municipal corporation, and such other powers and duties as may be lawfully delegated to it by the commission.
 
            "The institute may employ, engage and retain such staff and consultants as it deems necessary in carrying out its duties."
 
            Shortly after the enactment of this 1967 legislation, a question arose as to the constitutional eligibility of members of the 40th Legislature to serve as members of the commission during their then existing legislative terms of office because of the following language of Article II, § 13 of the state constitution:
 
            "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."
 
            In order to resolve this question, a test case was initiated in the supreme court in early 1968.  See, Oceanographic Commission v. O'Brien, 74 Wn.2d 904, 447  [[Orig. Op. Page 5]] P.2d 707 (1968).  In that case, counsel for the commission argued that it was, in essence, simply a legislative interim committee in the same mold as the legislative council and legislative budget committee and, hence, was governed by principles earlier laid down by the supreme court in State ex rel. Hamblen v. Yelle, 29 Wn.2d 68, 185 P.2d 723 (1947), in which members of the 1947 legislature were held to be constitutionally eligible to serve as members of the legislative council established by chapter 36, Laws of 1947, because it was deemed merely to be an agency of the legislature and not a body comprised of civil offices separate and apart from that branch of government.
 
            On the other hand, the respondent O'Brien urged that in view of the various powers vested in the oceanographic commission by § 4 (RCW 43.94.040), supra, the commission, although partially composed of legislators, was a separate state agency and not a mere legislative interim committee within the purview of the Hamblen ruling.  Thus, the respondent argued, membership on the commission constituted the holding of a "civil office" within the meaning of Article II, § 13, supra.
 
            After due consideration of these competing arguments, the supreme court held against the commission and in favor of the respondent, saying:
 
            ". . .  The duties and functions of the commission, unlike those of a legislative advisory committee, are not limited to assembling data and formulating proposals.  Neither is it directly responsible to nor does it act under the immediate supervision of any superior authority, contractual or otherwise, as would be the case in a position of employment.  On the contrary, the commission is statutorily mandated to 'exploit' the strategic position of this state as a base for oceanographic activities.  It is given the power to 'encourage,' 'assist,' 'develop,' and 'maintain' oceanographic programs, to 'promote' national interest in Puget Sound, to 'undertake' educational projects, to 'accept' funds and other grants, to interact with other agencies in the furtherance of public recreational or conservation programs and the control of water pollution, and to form and fund a nonprofit corporation to facilitate the exercise of its powers and the accomplishment of its objectives.  Public funds are appropriated to  [[Orig. Op. Page 6]] and are to be expended by the commission in the furtherance of its aims.  Independent initiative and the exercise of discretion in selecting a course or courses of action designed to carry out its purposes within the framework of the statute are lodged in the commission.  In short, it is designed as an arm of the state to promote, develop, maintain, and preserve a most valuable natural resource for the benefit of the citizens of this state and the public at large.  Under these circumstances, we are satisfied the commission is clothed with and exercises a portion of the state's police power in performing its functions."  (Pp. 912-913.)
 
            In our judgment (as we previously indicated, informally, in our letter of July 11, 1974, to the Executive Secretary of the Oceanographic Commission, copy enclosed) this ruling by the supreme court is determinative of your present question.  Because of its statutory powers and functions, the oceanographic commission of Washington, even though partially composed of legislators, is not merely a legislative interim committee but is an agency of the executive branch of government.
 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
PHILIP H. AUSTIN
Deputy Attorney General