Opinion No. (1990)

THE ATTORNEY GENERAL HAS RECEIVED YOUR LETTER ASKING FOR AN OPINION TO ANSWER, IN EFFECT, THE FOLLOWING QUESTIONS:

ACCORDING TO 59 O.S. 46.1 (1986), ET SEQ., WHAT IS THE EXPIRATION DATE FOR EACH BOARD MEMBER'S TERM IN OFFICE?

CAN A BOARD MEMBER WHOSE TERM OF APPOINTMENT HAS EXPIRED CONTINUE TO RECEIVE MONETARY REIMBURSEMENT FOR ACTUAL AND NECESSARY EXPENSES INCURRED IN THE PERFORMANCE OF DUTY, AS PROVIDED IN 59 O.S. 46.4 AND 59 O.S. 46.6 OF THE STATE ARCHITECTURAL ACT?

CAN A BOARD MEMBER WHOSE TERM HAS EXPIRED VOTE AND REPRESENT THE BOARD IN AN OFFICIAL CAPACITY UNTIL THE BOARD MEMBER IS REPLACED AND THE NEW BOARD MEMBER HAS BEEN QUALIFIED?

BOARD MEMBERS ARE APPOINTED BY THE GOVERNOR PURSUANT TO SECTION 46.4 OF THE ACT, WHICH PROVIDES IN PART:

"BOARD MEMBERS, OTHER THAN THE LAY MEMBER, SHALL BE APPOINTED FOR A PERIOD OF FIVE (5) YEARS . . .; PROVIDED THAT NOTHING HEREIN SHALL AFFECT THE TENURE OF OFFICE OF ANYONE WHO IS A MEMBER OF THE BOARD ON THE EFFECTIVE DATE OF THIS ACT. THE LAY MEMBER OF THE BOARD SHALL BE APPOINTED BY THE GOVERNOR TO A TERM COTERMINOUS WITH THAT OF THE GOVERNOR. THE LAY MEMBER SHALL SERVE AT THE PLEASURE OF THE GOVERNOR. PROVIDED, THE LAY MEMBER MAY CONTINUE TO SERVE AFTER THE EXPIRATION OF THE MEMBER'S TERM UNTIL SUCH TIME AS A SUCCESSOR IS APPOINTED. VACANCIES WHICH MAY OCCUR IN THE MEMBERSHIP OF THE BOARD SHALL BE FILLED BY APPOINTMENT BY THE GOVERNOR. EACH PERSON WHO SHALL HAVE BEEN APPOINTED TO FILL A VACANCY SHALL SERVE FOR THE REMAINDER OF THE TERM FOR WHICH THE MEMBER FOR WHOM HE SHALL SUCCEED WAS APPOINTED AND UNTIL HIS SUCCESSOR, IN TURN, SHALL HAVE BEEN APPOINTED SHALL HAVE QUALIFIED."

THE GOVERNOR'S AUTHORITY TO APPOINT BOARD MEMBERS IS DERIVED FROM POWERS GRANTED TO HIM IN THE OKLAHOMA CONSTITUTION. ARTICLE VI, SECTION 13, OF THE CONSTITUTION PROVIDES:

"THE GOVERNOR SHALL COMMISSION ALL OFFICERS NOT OTHERWISE COMMISSIONED BY LAW. ALL COMMISSIONS SHALL RUN IN THE NAME AND BY SIGNED BY THE AUTHORITY OF THE "STATE OF OKLAHOMA," BE SIGNED BY THE GOVERNOR, SEALED WITH THE GREAT SEAL OF THE STATE OF OKLAHOMA, AND ATTESTED BY THE SECRETARY OF STATE. WHEN ANY OFFICE SHALL BECOME VACANT, HE SHALL, UNLESS OTHERWISE PROVIDED BY LAW, APPOINT A PERSON TO FILL SUCH VACANCY, WHO SHALL CONTINUE IN OFFICE UNTIL A SUCCESSOR SHALL HAVE BEEN DULY ELECTED OR APPOINTED, AND QUALIFIED ACCORDING TO LAW."

IN ACCORDANCE WITH THIS, IF A LICENSED BOARD MEMBER IS APPOINTED TO A FULL TERM, THAT TERM EXPIRES FIVE YEARS AFTER THE APPOINTMENT DATE. THE LAY MEMBER'S TERM RUNS COTERMINOUS WITH THE GOVERNOR'S TERM IN OFFICE, AND CONTINUES UNTIL A REPLACEMENT IS QUALIFIED. A MEMBER WHO IS APPOINTED TO REPLACE ANOTHER MEMBER PART WAY THROUGH A FIVE (5) YEAR TERM REMAINS IN THE OFFICE UNTIL THE EXPIRATION OF THE ORIGINAL FIVE (5) TERM, OR UNTIL REPLACED.

FOR A BOARD MEMBER WHOSE TERM HAS EXPIRED, THE OKLAHOMA CONSTITUTION CLEARLY PROVIDES THAT MEMBER REMAINS ON THE BOARD UNTIL A SUCCESSOR HAS BEEN APPOINTED AND QUALIFIES. UNTIL SUCH SUCCESSOR IS APPOINTED AND QUALIFIES, THE BOARD MEMBER WOULD REMAIN ABLE TO PERFORM ALL DUTIES OF HIS OFFICE. SINCE THE STATUTE MAKES NO MENTION OF ANY DIFFERENCE IN AUTHORITY BETWEEN A MEMBER IN TERM AND A MEMBER WHOSE TERM HAS EXPIRED BUT WHO HAS NOT YET BEEN REPLACED, THE MEMBER COULD VOTE AND REPRESENT THE BOARD AS THOUGH HIS TERM HAD NOT EXPIRED. SIMILARLY, THE MEMBER WOULD BE ELIGIBLE FOR COMPENSATION PURSUANT TO 59 O.S. 46.4 AND 59 O.S. 46.6 UNTIL HIS SUCCESSOR HAS BEEN APPOINTED AND QUALIFIES.

(JAMES ROBERT JOHNSON)