STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6120

January 13, 1983

GOVERNOR:

Appointment power--time to make appointments subject to advice and consent in relation to final adjournment of Legislature

LEGISLATURE:

Advice and consent of Senate--time to exercise authority extending into ensuing Legislature

PUBLIC OFFICES AND OFFICERS:

Occupancy of office pending advice and consent of Senate

The Governor may make appointments subject to advice and consent of the Senate despite the fact that less than 60 session days remain in the final session of a Legislature.

A person appointed to office by the Governor, upon filing of the requisite oath of office, may assume that position immediately and may continue to hold office unless, within 60 session days following submittal of the appointment to the Senate, the Senate rejects the appointment.

The Senate has a full 60 session day period to exercise its advice and consent authority and the period may extend into the ensuing Legislature.

The Governor-elect, upon taking office, may withdraw an appointment made by the predecessor Governor, which has not been approved by the Senate, prior to the expiration of 60 session days from the date the predecessor Governor submitted the appointment to the Senate.

Honorable William Faust

Senate Majority Leader

The Senate

Lansing, Michigan

You have requested an opinion on the following questions:

Your first two questions are related and will be considered together.

You advise that the Governor has submitted the names of several persons to fill vacancies on state commissions and boards. These positions are for terms certain and require the advice and consent of the Senate pursuant to Const 1963, art 5, Sec. 6. In particular, Governor Milliken made appointments to fill vacancies on the Michigan State Waterways Commission on November 9, 1982. SJ No 91, p 2401 (1982), and vacancies on the Domestic Violence Prevention and Treatment Board on November 22, 1982. SJ No 97, p 2521 (1982). Vacancies in the Commission on Services for the Aging and in the Advisory Commission on Substance Abuse Services were also filled by appointment on December 1, 1982, SJ No 99, p 2575 (1982) and on December 15, 1982, SJ No 107, pp 2869-2870 (1982), respectively. On Friday, December 17, 1982, the Senate disapproved 18 appointments pursuant to its advice and consent power granted in Const 1963, art 5, Secs. 6 and 7. SJ No 109, pp 3040-3046 (1982). The following Monday, December 20, 1982, the Senate received a message from the Governor reappointing the same persons. SJ No 110, p 3166 (1982). The persons appointed have filed their oaths of office and are presently serving. The Legislature adjourned sine die without the Senate taking action on these appointments.

The constitutional appointment power of the Governor is set forth in Const 1963, art 5, Sec. 7, which provides:

Senate action with regard to appointments requiring its advice and consent is governed by Const 1963, art 5, Sec. 6, which states:

In OAG, 1963-1964, No 4359, p 494 (November 3, 1964), three questions were considered.

Responding to the first question, the opinion concluded that the term 'session day' as employed by the people in Const 1963, art 5, Sec. 6 means the day that the Legislature convenes in regular or special session, the day the Legislature adjourns the regular or special session and each intervening day, including Sundays.

The second question asked whether the Governor may make an interim appointment and does the appointee take office immediately where the Governor makes the same appointment while the Legislature is in session, 60 days have not run, and the Legislature adjourns sine die without action thereon being taken by the Senate. In responding to the question, the opinion expressly noted at the outset the factual basis for the question, that is, the appointee has not taken office since the appointment was made while the Senate was in session. The opinion concluded that an interim appointment may be made by the Governor and the appointee may assume office upon filing of the oath of office.

The third question inquired whether the 60 session day advice and consent authority carries over from one session to another and from one Legislature to another. Citing the Address to the People relating to Const 1963, art 5, Sec. 6, 2 Official Record, Constitutional Convention 1961, p 3379, the opinion concluded that the 60 session day advice and consent authority extended from one legislative session to the next session within the same Legislature but, based upon the state assumption that the appointed person does not occupy the office until either the Senate acted affirmatively or 60 session days have elapsed, the opinion declined to extend the advice and consent authority to a session of the ensuing Legislature.

The Attorney General considered the advice and consent authority of the Senate in OAG, 1965-1966, No 4531, p 393 (December 27, 1966), in the context of appointments made by the then Governor Romney to serve upon commissions as heads of principal departments of the executive branch of state government submitted to the Senate on January 12, 1966. 1 SJ 7, 8 (1966). The question was whether persons appointed to such public offices must receive the advice and consent of the Senate or have 60 session days elapse before assuming public office. The opinion traced the history of Const 1963, art 5, Sec. 6 before the Constitutional Convention of 1961, and the legal history of the predecessor advice and consent provision of Const 1908, art 6, Sec. 10, respectively, and concluded that Const 1963, art 5, Sec. 6 altered the practice of requiring persons appointed, while the Senate was in session, to commissions heading principal departments subject to advice and consent of the Senate, to await confirmation by the Senate before assuming office. Such persons appointed may now assume office immediately upon filing of the oath of office but subject to disapproval by the Senate.

It is axiomatic that the constitutional authorities of the Governor to make appointments to public office and the Senate to provide advice and consent must be equally respected in light of the constitutional scheme of government reflected in Const 1963, art 5, Secs. 3 and 7. The separation of powers required by Const 1963, art 3, Sec. 2 must be observed. Wood v State Administrative Board, 255 Mich 220; 238 NW 16 (1931).

The authority of the Senate to exercise its advice and consent power conferred by Const 1963, art 5, Sec. 7 is not afforded full meaning in the context of appointments submitted to it by the Governor less than 60 session days before final adjournment of a Legislature unless its authority to act within the ensuing Legislature is confirmed. The intent of the people expressed in Const 1963, art 5, Sec. 6 would be frustrated if, as here, the chief executive submits appointments only a few days before final adjournment and the Senate was precluded from a full exercise of its constitutional advice and consent role. Similarly, the will of the people would be thwarted if the appointments by a Governor were to be placed in jeopardy because the Senate was unable to act before the final adjournment of the Legislature even though 60 session days to act on the appointment had not elapsed.

Such potential results are avoided if the provisions of Const 1963, art 5, Sec. 6 are construed so as to provide the Senate with the full period of 60 session days to consider an appointment after it is submitted, regardless of the fact that a portion of the time span for senatorial advice and consent extends into a new session of the Legislature, whether part of the same Legislature or of the ensuing Legislature.

This conclusion not only avoids absurd results, Carman v Secretary of State, 384 Mich 443; 185 NW2d 1 (1971), but, more importantly, reflects the understanding and will of the framers and the people, as manifested in the following portion of the Address to the People, Const 1963, art 5, Sec. 6, supra:

While Const 1963, art 4, Sec. 13 does not carry over 'legislative business' from a regular session in an even numbered year to a regular session in an odd numbered year, in Attorney General ex rel Dust v Oakman, 126 Mich 717; 86 NW 151 (1901), the Supreme Court recognized that the Senate is performing an executive and not a legislative function when it exercises its advice and consent power over gubernatorial appointments. It follows that legislative 'business,' as used in Const 1963, art 4, Sec. 13, does not include the Senate's authority to reject appointments pursuant to Const 1963, art 5, Sec. 6. To this extent, OAG, 1963-1964, No 4359, the third question, supra, is no longer controlling.

It is further to be noted that since the adoption of Const 1963, the Legislature and a former Governor have evidenced their construction of Const 1963, art 5, Secs. 6 and 7 by their actions. Although constructions of constitutional provisions by the Legislature and the Governor are not conclusive, such constructions, in cases of doubt, must be given serious consideration. Smith v Auditor General, 165 Mich 140, 145-146; 130 NW 557, 558-559 (1911); Manthey v Vincent, 145 Mich 327; 108 NW 667 (1906); CJS, Constitutional Law, Sec. 33.

The Legislature has established a pattern of construing Const 1963, art 5, Secs. 6 and 7 to permit a Governor to appoint a person within 60 days of the end of a legislative session to fill a vacancy where advice and consent of the Senate is necessary and by exercising its constitutional advice and consent authority to disapprove or confirm such appointments in the ensuing Legislature. Such a legislative construction was implicit in the Senate's action to confirm on February 13, 1979, the appointments of Mr. Walter A. Campbell as a member of the Michigan Employment Security Commission; Mr. William McLaughlin as Director of the Department of Commerce; and Mr. Hannes Meyers, Jr., Mr. Carl Pellonpaa and Mr. Weston Vivian to the State Transportation Commission, which appointments were submitted on December 29, 1978 during the preceding Legislature. 1 SJ 148-150 (1979); 3 SJ 2733, 2744 (1978).

Similarly, since 1968 other appointments made less than 60 session days before final adjournment of a Legislature have been confirmed during the ensuing Legislature. 1 SJ 168 (1981); 3 SJ 3619 (1980); 1 SJ 138 (1973); 3 SJ 2305 (1972); 1 SJ 110-111 (1973); 3 SJ 2033-2034 (1972).

It must also be observed that on January 13, 1965, Governor Romney sent a message to the Senate requesting withdrawal of the appointment of Dr. Earl Congdon to the State Council of Health which had been submitted to the Senate on May 21, 1964, eight days before the Legislature's final adjournment on May 29, 1964. The Senate granted the request. 1 SJ 30-31 (1965); 2 SJ 1500 (1964). Thus, former Governor Romney's withdrawal of an appointment made in the previous Legislature demonstrated his interpretation that the 60 day period during which an appointee is subject to advice and consent traversed two Legislatures.

These legislative and executive constructions support the conclusions that the Governor may appoint persons to fill vacancies within 60 session days of the sine die adjournment of a Legislature and that the Senate retains the full 60 session days in which to advice and consent to the appointments, even though the 60 session days may be spread across different Legislatures.

As to the authority of the Governor, there is no limitation in Const 1963, art 5, Sec. 7 or in any other provision of law which would restrict the power of the Governor to make the appointments requiring advice and consent of the Senate to a period in excess of 60 session days before a session of the Legislature is finally adjourned.

In fact, the Address to the People, Const 1963, art 5, Sec. 6, supra, in pertinent part, evidences an intent of the framers and the people to establish an appointment procedure that preserves the effective participation and power of both the Senate and the Governor:

While designed to ensure the Senate sufficient time to consider the merits of each person appointed by the Governor, the advice and consent procedure prevents the Senate from withholding confirmation by failing to act or by an early adjournment. If the Senate could preclude confirmation of an appointment within 60 days of the final adjournment of a legislative session by inaction, then the will of the people and the framers of Const 1963, as evidenced by the Address to the People, would be impeded.

It is my opinion in answer to your first question, that the Governor may make appointments within the period of 60 session days of the final adjournment of any session of the Legislature.

In view of the foregoing, it is my opinion in response to your second question whether the time within which the Senate may reject a gubernatorial appointment extends into the ensuing Legislature, that pursuant to Const 1963, art 5, Sec. 6 the Senate has a full 60 session day period to consider and approve or reject a gubernatorial appointment and this period carries over to the ensuing legislative session, which may traverse two Legislatures. It is my further opinion that a person appointed by the Governor, upon filing of the oath of office, may assume the office immediately and occupy it unless the Senate acts to reject the appointment within 60 session days after its submittal to the Senate.

Turning to your last question, the conclusion that the 60 session day period within which the Senate may approve or reject an appointment extends into an ensuing Legislature raises the additional question whether the Governor-elect, upon taking office, may withdraw an appointment of his predecessor prior to the expiration of the 60 session day advice and consent period. In this regard, it is to be noted that the office of the governor is a continuing office. As such, a succeeding governor has the same power over an appointment as his or her predecessor. Burke v Schmidt, 86 SD 71; 191 NW2d 281 (1971).

Responding to the question whether the Governor may withdraw the name of an appointee prior to the expiration of the 60 session day rejection period, Senator William B. Fitzgerald was advised in a letter opinion dated September 20, 1976:

This conclusion is consistent with the decision of the Michigan Supreme Court in Thorne v Squier, 264 Mich 98, 105; 249 NW 497, 499 (1933), which held that a 'person duly elected or appointed to an office ordinarily cannot be removed during his term by subsequent action of the body that has elected him, once all the steps requisite to the election or appointment have been completed.' (Emphasis added.)

It is noted that Speed v Common Council of Detroit, 97 Mich 198; 56 NW 570 (1893), motion to vacate denied, 98 Mich 360; 57 NW 406 (1894), held that once the appointing authority exercised its function, it could not withdraw an appointment. In its opinion, the court carefully noted the evolution of the controlling city charter. The position in question was not, under the provisions of the city charter, subject to the advice and consent of the common council. Once the mayor made the appointment, it was 'absolute,' 'not inchoate' and, thus, beyond the mayor's power to withdraw. Inasmuch as under Const 1963, art 5, Sec. 6, the appointment of a state officer is not complete until the expiration of 60 session day period following submittal of the appointment, it is my opinion that the Governor-elect, upon taking office, may withdraw an appointment made by his predecessor before the expiration of 60 session day period from the date the predecessor Governor submitted the appointment to the Senate.

In summary it is my opinion that:

1. The Governor may exercise the appointment power set out in Const 1963, art 5, Sec. 7, despite the fact that less than 60 session days remain in the final session of a Legislature.

2. A person appointed to office by the Governor, upon filing of the requisite oath of office, may assume that position immediately and may continue to hold office unless, within the 60 session day period following submittal of the appointment to the Senate, the Senate rejects the appointment.

3. The Senate has a full 60 session day period to exercise its advice and consent authority and the period may extend into the ensuing Legislature.

4. The Governor-elect, upon taking office, may withdraw an appointment made by the predecessor Governor, which has not been approved by the Senate, prior to the expiration of the 60 session day period from the date the predecessor Governor submitted the appointment to the Senate.

Frank J. Kelley

Attorney General