Could Washington county commissioners remove a community mental health supervisor without the program board’s approval in 1970?

Plain-English summary

The 1970 AG said Washington county commissioners could remove a community mental health services supervisor without approval from the program's administrative board. RCW 71.24.080 required the board's approval when commissioners appointed the supervisor, but the act specified no fixed term or removal procedure. The AG applied the general rule that, absent a contrary provision, appointment power carried removal power without a second body's concurrence. (Official opinion)

Currency note

This opinion was issued in 1970. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

County commissioners

The commissioners made the appointment subject to the community mental health board's approval. Because the statute fixed no tenure and said nothing about removal, the AG concluded commissioners retained the removal power independently.

Administrative boards and supervisors

The board's approval role at appointment did not extend to removal under the AG's reading. The opinion addressed the structure of the 1970 statute rather than any particular supervisor's contract or facts.

Common questions

Q: Did the mental health board have to agree to the supervisor's removal?
A: No. The AG said commissioners could remove the supervisor without the board's concurrence.

Q: Why was board approval needed to hire but not to remove?
A: The appointment statute expressly required approval, while the law fixed no term and included no comparable condition for removal.

Q: Was a fixed term specified in the law the AG reviewed?
A: No. The AG identified the absence of a statutory term as part of its analysis.

Background and statutory framework

Chapter 71.24 RCW then provided for county community mental health programs. RCW 71.24.080 put appointment with the county commissioners subject to administrative-board approval. The AG applied the appointment-implies-removal rule in the absence of a statutory limit.

Citations and references

The opinion quoted RCW 71.24.080.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/counties-supervisor-community-mental-health-services-removal-county-commissioners

Original opinion text

Attorney General Slade Gorton

COUNTIES - SUPERVISOR OF COMMUNITY MENTAL HEALTH SERVICES - REMOVAL BY COUNTY COMMISSIONERS

The supervisor of community mental health services for a county may be removed from office by the county commissioners without the concurrence or approval of the county's community mental health program administrative board.

November 9, 1970

Honorable Lincoln E. Shropshire
Prosecuting Attorney
Yakima County Court House
Yakima, Washington 98901

Cite as: AGO 1970 No. 25

Dear Sir:

This is written in response to your recent request for our opinion on a question which we paraphrase as follows:

May the supervisor of community mental health services for a county be removed from office by the county commissioners without the concurrence or approval of the county's community mental health program administrative board?

We answer this question in the affirmative for the reasons set forth in the following analysis.

ANALYSIS

The establishment of community mental health service programs, either on a single or multicounty basis, is provided for under chapter 71.24 RCW, codifying the provisions of chapter 111, Laws of 1967, Ex. Sess. Under RCW 71.24.060, each county or combination of counties desirous of establishing such a program is required to set up a community mental health program administrative board, the duties of which are spelled out in RCW 71.24.070. In addition to this board, there is to be, in each county or combination of counties establishing a community mental health service program, a "supervisor of community mental health services" [[Orig. Op. Page 2]] whose powers and duties are specified in RCW 71.24.090.

The governing statute with respect to the appointment of this "supervisor of community mental health services" is RCW 71.24.080, which reads as follows:

"The supervisor of community mental health services shall be appointed by the county commissioners of the county or combination of counties involved, subject to the approval of the community mental health program administrative board. Applicants for such position need not be residents of the county, city, or state, and may be employed on a full or part time basis."

However, nowhere within the act is any tenure or term of office for this supervisor specified; nor, as you have pointed out in your request, is there any provision within the act for his removal. Furthermore, we have found no provision in our state constitution which would govern either of these two aspects of the matter.

The applicable rule in such a case, as stated by the Washington court in the early case ofPrice v. Seattle, 39 Wash. 376, 378, 81 Pac. 847 (1905), is as follows:

"In the absence of restraints imposed by the Constitution or by statute, the power of appointment implies the power of removal, where no definite term is attached to the office or employment by law. . . ."

See, also, 43 Am.Jur., Public Officers, § 183, pp. 31, 32, where it is stated that:

"When the term or tenure of a public officer is not fixed by law, and the removal is not governed by constitutional or statutory provision, the general rule is that the power of removal is incident to the power to appoint. Inasmuch as the tenure has not been declared by law, the office is held during the pleasure of the authority making the appointment, and no formal charges or hearings are required in the absence of some statute on the subject. . . ."

[[Orig. Op. Page 3]]

Query, however: Where, as in this case under RCW 71.24.080, supra, the power of appointment is vested in one body (the county commissioners) subject to the approval of another (the community mental health program administrative board) is the concurrence of both of these bodies necessary in order to remove the officer in question?

Our research has disclosed no Washington cases on this point, and thus we have had to look elsewhere for an answer. What we have found, although somewhat sparse, is uniformly in the negative. See,In re Hennen, 13 Pet. 230, 10 L.Ed. 138 (1839); Parsons v. United States, 167 U.S. 324, 42 L.Ed. 185, 17 S.Ct. 880 (1896); andNewsom v. Cocks, 44 Misc. 352, 7 Am. Rep. 686 (Miss. 1870). These three cases are summarized in 4 McQuillin, Municipal Corporations, § 12.233c (p. 238) as standing for the proposition that:

". . . the fact that appointments of persons to office require the approval or confirmation of another officer or tribunal does not mean that the latter must concur when the power of removal is exercised by the appointing authority. . . ."

In application of the foregoing rules to the situation of a supervisor of community mental health services under RCW 71.24.070, supra, it is, therefore, our opinion (in the absence of any statutory provisions to the contrary) that although the approval of a community mental health program administrative board is required as a condition to the exercise of the county commissioners' power of appointment of the supervisor, this approval is not required as a condition to the county commissioners' exercise of their correlative power of removal.

We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN

Assistant Attorney General