Issue Paper # 3 2nd Draft
Board Appointments and Senate Confrimation
I. IDENTIFICATION OF THE ISSUE
The Growth Management Hearings Boards have faced a number of criticisms about the nature of their decisions. Because the Board members are appointed by the Governor without Senate Confirmation, they may be more subject to attack than if they had been subject to that review process. Members of the three Growth Management Hearings Boards are appointed by the Governor for six year terms. Members are not subject to Senate Confirmation. This paper discusses the requirements for appointment to the Boards and compares the requirements for these Boards with the requirements and process for appointing members to other Boards and Commissions.
II BACKGROUND
A . Legislative History of Growth Management Hearings Boards
Washington's first growth management legislation was passed by the legislature and signed into law in 1990. (ESHB 2929; Ch. 17, Laws of 1990 1st ex. s.) That original enactment established the initial goals for growth management, required certain counties to enact comprehensive plans, and required all cities and counties to designate critical areas and natural resource lands. The 1990 legislation contained no provisions on enforcement of its provisions. After the end of the 1990 legislative session, an initiative to the people was proposed which would have made significant modifications to growth management. (I-547 (1990)). Among other features, the initiative would have created a strong state role in growth management planning, including the ability of DCTED to approve comprehensive plans and development regulations.
The Washington State Growth Strategies Commission, created by Governor Booth Gardener in August 1989, was also working on its final recommendations during this time period. The Growth Strategies Commission recommended a process to ensure compliance and resolve disputes that included recommendation for the creation of a Growth Strategies Advisory Council. The Council would have provided advice to the Governor and the Legislature on growth management related issues and would have also heard challenges to local government actions under the GMA. The Growth Strategies Commission also recommended the development of a dispute resolution system involving mediation and binding arbitration as a way to quickly resolve disputes. Footnote1
At least in partial response to the Initiative, the leaders of the four legislative caucuses signed a letter indicating their intent to address a number of the issues also addressed in the initiative, including provisions relating to the enforcement of the GMA. I-547 was defeated at the polls in November 1990.
HB 1025 was introduced in the 1991 session in as Executive Request legislation. Among its provisions was the formation of a single Growth Management Hearings Board under the umbrella of the Environmental Hearings Office. Footnote2 (Secs. 33-37, HB 1025 (1991). The bill passed the House with that structure intact. The bill ran into difficulties in the Senate. (At the time, the House had a Democrat majority and the Senate had a Republican Majority.) By the time the bill was approved by the Legislature, the one Board had been spilt into three. They were also established as separate entities, rather than as part of the Environmental Hearings Office.
Members of the Growth Management Hearings Boards Footnote3 are appointed by the Governor for six year terms. Footnote4 Each board must have one member who is an attorney and one who has been a city or county elected official. Members are required to have land use planning experience or training. The boards must also be balanced politically and members much reside in different counties.
The provisions governing the terms of the Board members are likely the result of their original inclusion in the Environmental Hearings Office. The members of the PCHB serve six year terms. There were several reasons given to support this term of office. With six year terms, only one member would be up for re-appointment each two years. Since one of the reasons supporting the creations of the Boards was the sentiment that the Superior Courts lacked expertise in land use matters, reducing the turn-over on the Boards was seen as a way to maintain some consistency over time. Another reason often given for terms which exceed that of the appointing authority is to act as a brake on shifting political winds.
Although the PCHB members are subject to Senate confirmation, there is no clear history indicating why the GMHB members were not subject to confirmation. About all one can say is that the original bill did not include that requirement as a provision. According to participants in the development of the legislation, the Senate never asked to make this change.
B. Gubernatorial Appointments
One reason the Senate may not have asked for confirmation authority in the past may lie in the fact that the Senate has hundreds of gubernatorial appointments to process. This has become an increasing burden on the Senate. In the both 1995 and 1996, the Senate passed legislation that would have eliminated a number of agency appointments from the requirement of Senate confirmation. Footnote5 In 1996, the House amended the measure to require a joint study of the issue with the Senate. The Senate did not concur with the amendments.
The Governor's Office reports over 170 agencies for which the Governor must make appointments. Footnote6 The agencies, boards, and commissions run from the Board of Accountancy to Land Use Study Commission to the World War II Memorial Advisory Committee. Over 50 of these Boards require senate confirmation, not including the trustees of the 30 Community and Technical Colleges. The range of entities requiring Senate Confirmation is quite varied. A number of Commissions with regulatory authority are included, such as the Gambling Commission, the Horse Racing Commission, and the Liquor Control Board.
A review of the report shows five boards that appear to have quasi-judicial or appeal responsibilities similar to that of the GMHBs. Footnote7 Of these types of agencies, only the GMHBs do not require Senate confirmation of their members. All of these agencies have members who are appointed for six year terms.
As a comparison to other judicial decision makers in the state, Court of Appeals and Supreme Court judges have six year terms. Municipal, district, and superior court judges have four year terms. If the case of a vacancy in the superior court, the court of appeals, or the supreme court, the Governor may appoint a replacement. The position is subject to election at the next general election.
C. Effect of Senate Action Regarding Appointment
There are a number of different actions that the Senate may take when the Governor makes an appointment: confirm the appointment, reject the appointment, or do nothing. In addition, the Governor may in some cases wish to rescind an appointment. Each of these actions caries with it a potential impact on the ability of the appointee to serve.
To begin with, the general rule is that the appointee may serve until the appointment is rejected. Footnote8 This means that failure of the Senate to act on an appointment does not prevent the individual from serving. According to Governor's office staff, this is the course most often taken with controversial appointments. Rather than reject a Gubernatorial appointment, the Senate will more often not take it up, particularly when the Governor and the Senate are of the same political party. The Legislature may provide a different rule for those appointments that it makes subject to Senate confirmation. Footnote9 The members of the quasi-judicial boards subject to Senate confirmation all serve until their replacements are appointed. Footnote10
Although the proposition has not been tested in this state's courts, the Attorney General has also opined that the Governor may not rescind an appointment that has been forwarded to the Senate without the Senate's acquiescence. Footnote11
III. ISSUE DISCUSSION
Senate Confirmation. Because of the recent controversies surrounding the GMHBs, there is some thought that Senate Confirmation would give them additional political credibility so that they might better withstand unwarranted attacks on their decisions. In addition, there has been a suggestion that Board member terms should be reduced to four years, from the current six. This would be similar to the term for most local elected officials.
One rationale for requiring Senate confirmation is the belief that the confirmation process will encourage the Governor to make certain his or her appointments can survive the political approval process. This may lead to appointments which have broader based political support than would be the case if the Governor is not required to submit the names to the Senate. Senate confirmation might also give the Boards more political credibility if the Legislature knows that it has had an opportunity to review and approve the board members.
Arguments against Senate confirmation are based on the problems with the Confirmation process itself. Because of the huge number of appointments that must be confirmed, the Senate is unable to give much attention to the appointees. Some observers of the process believe that it is largely a paper exercise in the majority of cases and that the Senate does not exercise much review. As a result, there is not much political credibility to be gained through the confirmation process.
Another argument against confirmation is that it would tend to further politicize an already heavily politicized process. Confirmation is likely to be less dependent on the quality of the appointees background than on disagreements with the appointees political philosophy.
There would also be concerns about what would happen if an appointee is rejected. How would a new appointment be made and when would it take effect? With only two members on a Board, it might prove difficult for the Board to issue a decision in some cases within the time periods set out by the statute.
Term of Appointment. The case for four year terms is largely grounded on the idea that many of the state's local elected officials serve four year terms, as do superior court judges.
The concerns with four year terms lie in the reduced continuity that might occur. One of the issues raised by many local governments is the constant change in GMA and other related statutes. Creating a situation where there may be more frequent turnover of GMHB personnel may lead to greater volatility. The Boards might be more subject to the swings of opinion about GMA and other statutes.
IV. OPTIONS
A. Appointment mechanism
Option 1: No change.
Pro:
| The current process has resulted in good appointments. |
| Complaints about board decisions will be around no matter what appointment process is used. |
| The Senate confirmation does not add any significant credibility to board and commission members who are subject to that process. |
| The Senate is overwhelmed with appointments and has been attempting to eliminate confirmations. |
| The Boards should be eliminated. Changing the appointment process does not address this need. |
Con:
| All other quasi-judicial board members are subject to Senate confirmation. |
| Confirmation will provide an additional level of credibility to Board members. |
Option 2: Require senate confirmation. Require Board members to be confirmed by the Senate. Rely on the existing statutory procedure for handling failure of the Senate to act on an appointment. Provide for a phase in of the process, so that as each current member comes up for reappointment, that member or his or her replacement would need to be confirmed.
Pro:
| All other quasi-judicial board members are subject to Senate confirmation. |
| Confirmation will provide an additional level of credibility to Board members. |
Con:
| The current process has resulted in good appointments. |
| Complaints about board decisions will be around no matter what appointment process is used. |
| The Senate confirmation does not add any significant credibility to board and commission members who are subject to that process. |
| The Senate is overwhelmed with appointments and has been attempting to eliminate confirmations. |
| The Boards should be eliminated. Anything that gives them additional credibility will work against this result. |
Option 3: Election.
Pro:
| Makes Board members directly accountable to the public. |
Con:
| Expensive to run an election. |
| Makes the Boards more political than they already are. |
| An elected board will be likely to be a permanent part of the land use process and sometime in the future it may be desirable to look at other alternatives for resolving disputes. |
B. Terms of Appointment
Option 1: No change.
Pro:
| Six year appointments allow board members to develop expertise and provides for consistency over time. |
| Reduces chance of major policy shifts from one administration to the next. |
Con:
| Most state and local elected officials serve four year terms. |
| An incoming administration should have greater authority to assure that Commissions acting on. its behalf are acting in accord with that administration's wishes. |
Option 2: Change term of appointment to four years.
Provide a phase in period so that the replacements for the current members would serve for four years rather than the current six year terms.
Pro:
| Allows each administration greater opportunity to assure that the Boards are reflective of that administration's policies. |
Con:
| Four years is not enough time to develop the expertise necessary to make good decisions. |
| Increases chance that there will be rapid changes as members are replaced. Makes consistency more difficult. |
A Growth Strategy for Washington State, Washington State Growth Strategies Commission (1990), pp. 15-16. The Growth Strategies Advisory Council would have had membership from local and state government, key state elected officials, and the private sector.
The Environmental Hearings Office consists of the Pollution Control Hearings Board, the Shoreline Hearings Board, the Forest Practices Appeals Board, and the Hydraulic Approval Appeals Board. The members of the PCHB are also members of the SHB. The Office provides administrative assistance to each of the boards, but they have independent responsibilities. The PCHB members are appointed for terms of six years and are subject to Senate Confirmation.
The Boards were originally known as the Growth Planning Hearings Boards. The name was changed as part of regulatory reform legislation in the 1994 session. (E2SHB 2510; Ch. 249, Laws of 1994)
RCW 36.70A.260 " (1) Each growth management hearings board shall consist of three members qualified by experience or training in matters pertaining to land use planning and residing within the jurisdictional boundaries of the applicable board. At least one member of each board must be admitted to practice law in this state and at least one member must have been a city or county elected official. Each board shall be appointed by the governor and not more than two members at the time of appointment or during their term shall be members of the same political party. No more than two members at the time of appointment or during their term shall reside in the same county. (2) Each member of a board shall be appointed for a term of six years. A vacancy shall be filled by appointment by the governor for the unexpired portion of the term in which the vacancy occurs. The terms of the first three members of a board shall be staggered so that one member is appointed to serve until July 1, 1994, one member until July 1, 1996, and one member until July 1, 1998."
ESB 5837 deleted the following agencies from Senate Confirmation requirements: Sentencing Guidelines Commission, Clemency and Pardons Board, Indeterminate Sentence and Review Board, Juvenile Disposition Standards Commission, State Board of Pharmacy, Washington Higher Education Facilities Authority, Workforce Training and Education Coordinating Board, Personnel Appeals Board, Columbia River Gorge Commission, Interagency Commission for Outdoor Recreation, Washington State Housing Finance Commission, Board of Directors of Small Business Export Finance Assistance Center, State Apprenticeship Council, Washington Health Care Facilities Authority, Eastern State Hospital Board, Western State Hospital Board, Pacific Marine Fisheries Commission, Energy Facility Site Evaluation Council, and Board of Pilotage Commissioners.
Boards and Commissions Vacancies Report, Office of the Governor (1996). Wash. Const., Art. 13, Sec. 1 requires Senate confirmation of regents, directors, and commissioners of certain public institutions, including state universities and penal institutions.
Forest Practices Appeals Board, Growth Management Hearings Boards (3), Board of Industrial Insurance Appeals, Personnel Resources Board, Pollution Control/Shoreline Hearings Board, and Board of Tax Appeals.
RCW 43.06.092(1) "Any gubernatorial appointee subject to senate confirmation shall continue to serve unless rejected by a vote of the senate. An appointee who is rejected by a vote of the senate shall not be reappointed to the same position for a period of one year from termination of service." See also, AGLO 1973 No. 33.
The former RCW 41.06.110 provided (in part) ". . . no member [of the personnel appeals board] appointed when the legislature was not in session shall continue to be a member of the board after the thirtieth day of the next legislative session unless his [sic] appointment shall have been approved by the senate. . . ." See AGLO 1973 No. 33.
RCW 43.21B.020 (Pollution Control Hearings Board), RCW 76.09.210 (Forest Practices Appeals Board), RCW 51.52.010 (Industrial Insurance Appeals Board), RCW 41.06.110 (Personnel Resources Board), and RCW 82.03.030 (Board of Tax Appeals).
AGLO 1981, No. 10. See, also, RCW 43.06.094. "Gubernatorial appointees subject to senate confirmation, other than those who serve at the governor's pleasure, may not be removed from office without cause by the governor prior to confirmation except upon consent of the senate as provided for by the rules of the senate."