Opinion No. (1990)

ATTORNEY GENERAL HENRY HAS ASKED ME TO RESPOND TO YOUR RECENT REQUEST FOR A LEGAL OPINION REGARDING THE DATE ON WHICH GUBERNATORIAL APPOINTEES TO THE OKLAHOMA HISTORICAL SOCIETY'S BOARD OF DIRECTORS ASSUME THEIR OFFICE.

ISSUE PRESENTED

THE ISSUE PRESENTED BY YOUR INQUIRY IS:

ON WHICH OF THE TWO FOLLOWING DATES ARE NEW MEMBERS TO THE OKLAHOMA HISTORICAL SOCIETY BOARD OF DIRECTORS, APPOINTED BY THE GOVERNOR, TO BE INSTALLED IN OFFICE:

1. AT THE ORGANIZATIONAL MEETING OF THE BOARD, WHICH IMMEDIATELY FOLLOWS THE SOCIETY'S ANNUAL MEETING IN APRIL, OR

2. AT A LATER DATE, LISTED BY THE GOVERNOR AS THE DATE ON WHICH THE TERM OF THE PRIOR APPOINTEE END?

FACTS GIVING RISE TO THE QUESTION PRESENTED

BOTH PRESENT AND FORMER GOVERNORS, IN MAKING APPOINTMENTS TO THE OKLAHOMA HISTORICAL SOCIETY BOARD OF DIRECTORS, HAVE INDICATED IN THEIR ORDERS OF APPOINTMENT, THAT THE APPOINTEE WAS BEING APPOINTED "TO SERVE A THREE (3) YEAR TERM ENDING MAY 1," OF THE APPLICABLE YEAR. THE GOVERNORS' INDICATION THAT THE TERM WOULD END MAY 1ST OF THE APPLICABLE YEAR, IS IN CONTRAST WITH PORTIONS OF THE SOCIETY BY-LAWS, THAT PROVIDE THAT APPOINTEES WILL BE INSTALLED IN OFFICE AT THE ORGANIZATIONAL MEETING FOLLOWING THE SOCIETY'S ANNUAL MEETING, WHICH IS HELD, UNDER THE PROVISIONS OF THE SOCIETY'S CONSTITUTION AND BY-LAWS IN APRIL.

IT IS THE DIFFERENCE BETWEEN THE MANDATE OF THE SOCIETY'S BYLAWS AND THE ORDERS OF APPOINTMENT, THAT HAS PROMPTED YOU TO INQUIRE WHEN NEW GUBERNATORIAL APPOINTEES ARE TO BE INSTALLED IN OFFICE.

CONTROLLING NATURE OF THE OKLAHOMA HISTORICAL SOCIETY'S CONSTITUTION AND BY-LAWS

IN 1935, WHEN THE OKLAHOMA LEGISLATURE ENACTED LAWS RELATING TO THE OKLAHOMA HISTORICAL SOCIETY ITS POWERS, AND DUTIES, THE LEGISLATURE PROVIDED AT 53 Ohio St. 6 THAT THE BOARD OF DIRECTORS OF THE OKLAHOMA HISTORICAL SOCIETY WAS TO CONSIST OF NO MORE THAN TWENTY-FIVE MEMBERS, AND SHALL HAVE THE SAME POWERS "AS NOW EXIST UNTIL CHANGED ACCORDING TO THE CONSTITUTION AND BY-LAWS OF SAID SOCIETY, OR BY ACTS OF THE LEGISLATURE."

TWO YEARS LATER, IN 1937, IN ENACTING LAWS DEALING WITH MEMBERSHIP IN THE SOCIETY, THE LEGISLATURE, AT 53 O.S.17 (1981), PROVIDED THAT MEMBERS OF THE SOCIETY WERE TO BE THOSE WHO HAD HERETOFORE BECOME AND WERE NOW MEMBERS OF THE SOCIETY, AND SUCH OTHERS THAT MAY BE ADMITTED AND ELECTED AS MEMBERS IN ACCORDANCE WITH ITS CONSTITUTION AND BY-LAWS AND ARE TO CONTINUE AS MEMBERS THEREOF IN ACCORDANCE WITH THE TERMS OF (THE SOCIETY'S) CONSTITUTION AND BY-LAWS AS IT MAY BE AMENDED IN ACCORDANCE WITH ITS TERMS.

THE LEGISLATURE IN ENACTING THESE PROVISIONS, EXPLICITLY RECOGNIZED THAT THE GOVERNANCE OF THE HISTORICAL SOCIETY IS TO BE CONTROLLED BY THE SOCIETY'S CONSTITUTION AND BY-LAWS, AS WELL AS STATE STATUTES. THE CONTINUING VIABILITY OF THE SOCIETY'S CONSTITUTION WAS AGAIN RECOGNIZED BY THE LEGISLATURE IN 1988 WHEN IT ENACTED 53 Ohio St. 1.6 (1989), WHICH PROVIDES THAT THE NUMBER OF MEMBERS ON THE SOCIETY'S BOARD OF DIRECTORS MAY BE DECREASED EITHER BY ACT OF THE LEGISLATURE, OR BY ACT OF SAID SOCIETY BY AMENDING ITS CONSTITUTION.

PERTINENT PROVISIONS OF THE OKLAHOMA HISTORICAL SOCIETY'S CONSTITUTION AND BY-LAWS

THE CONSTITUTION OF THE OKLAHOMA HISTORICAL SOCIETY PROVIDES AT ARTICLE IV , SECTION 1 (ARTICLE IX , SECTION 1) THAT THE SOCIETY SHALL HAVE AN ANNUAL MEETING NOT BE HELD AT SUCH PLACE OR PLACES AND ON SUCH DATE OR DATES AS SET FORTH IN THE BY-LAWS OF THE SOCIETY.

THE SOCIETY'S BY-LAWS AT ARTICLE II, SECTION 5 SPECIFY THE TIME AND DATE OF THE SOCIETY'S ANNUAL MEETING:

"THE ANNUAL MEETINGS OF THE MEMBERSHIP SHALL CONVENE AT 1:00 P.M. ON THE FRIDAY FOLLOWING THE FOURTH TUESDAY OF THE MONTH OF APRIL IN THE MEETING ROOM OF THE OKLAHOMA HISTORICAL SOCIETY OR AT SUCH OTHER LOCATION WITHIN THE STATE OF OKLAHOMA AS SHALL BE DESIGNATED BY MAJORITY VOTE OF THE BOARD OF DIRECTORS."

THE SOCIETY'S BY-LAWS, ALSO PROVIDE FOR AN ANNUAL ORGANIZATIONAL MEETING OF THE BOARD OF DIRECTORS, FOLLOWING THE ANNUAL MEETING, ARTICLE II, SECTION 7 OF THE BY-LAWS PROVIDING:

"SECTION 7: ORGANIZATIONAL MEETING OF THE BOARD OF DIRECTORS

FOLLOWING THE ANNUAL MEETING OF THE MEMBERSHIP ON THE DATE STATED IN SECTION 5 OF THIS ARTICLE, THE ELECTED AND APPOINTED MEMBERS OF THE BOARD OF DIRECTORS SHALL CONVENE IN THE BOARD ROOM OF THE SOCIETY AND SHALL CONDUCT AN ORGANIZATIONAL MEETING OF THE BOARD.L THE ELECTED OFFICERS SHALL TAKE OFFICE INSTANTER."

WHILE THE BOARD UNDER ARTICLE II, SECTION 7 OF THE SOCIETY'S BY-LAWS, IS CLEARLY REQUIRED TO HAVE AN ORGANIZATIONAL MEETING FOLLOWING ITS ANNUAL MEETING, THE REQUIREMENT THAT THE ORGANIZATION MEETING BE HELD IN THE BOARD ROOM OF THE SOCIETY HAS, BY IMPLICATION, BEEN MODIFIED BY RECENT CHANGES IN ARTICLE II, SECTION 5 OF THE BY-LAWS. UNTIL AMENDED IN OCTOBER OF 1985, SECTION 5 REQUIRED THAT THE ANNUAL MEETING OF THE SOCIETY BE HELD IN THE MEETING ROOM OF THE OKLAHOMA HISTORICAL SOCIETY. THE AMENDMENT TO THAT BY-LAW NOW PERMITS THE ANNUAL MEETING TO BE HELD EITHER IN THE MEETING ROOM OF THE OKLAHOMA SOCIETY OR "AT SUCH OTHER LOCATION WITHIN THE STATE OF OKLAHOMA AS SHALL BE DESIGNATED BY A MAJORITY VOTE OF THE BOARD OF DIRECTORS. AS THE ORGANIZATIONAL MEETING IMMEDIATELY FOLLOWS THE ANNUAL MEETING, THE ORGANIZATIONAL MEETING MAY NOW BE HELD AT A PLACE OTHER THAN THE MEETING ROOM OF THE HISTORICAL SOCIETY, WHEN THE ANNUAL MEETING IS HELD AT A LOCATION OTHER THAN IN THE SOCIETY'S MEETING ROOM.

IT IS AT THIS ORGANIZATIONAL MEETING, WHICH FOLLOWS THE ANNUAL MEETING, THAT NEWLY ELECTED AND APPOINTED BOARD MEMBERS ARE REQUIRED TO BE INSTALLED BY VIRTUE OF ARTICLE VII, SECTION 6 OF THE SOCIETY'S BY-LAWS, WHICH PROVIDES:

"SECTION 6: INSTALLATION.

NEWLY ELECTED DIRECTORS AND THOSE APPOINTED BY THE GOVERNOR TO THE BOARD SHALL BE INSTALLED AT THE ORGANIZATIONAL AND REGULAR MEETING OF THE BOARD FOLLOWING THE ANNUAL MEETING AS HEREIN SET FORTH."

THUS, UNDER THE SOCIETY'S BY-LAWS, BOARD MEMBERS' TERMS BEGIN AND END AT THE ORGANIZATIONAL MEETINGS FOLLOWING THE SOCIETY'S ANNUAL MEETING.

SCOPE OF THE GOVERNOR'S APPOINTMENT POWER

ARTICLE VI , SECTION 13 OF THE OKLAHOMA CONSTITUTION PROVIDES FOR THE GOVERNOR'S APPOINTMENT POWERS AS FOLLOWS:

"THE GOVERNOR SHALL COMMISSION ALL OFFICERS NOT OTHERWISE COMMISSIONED BY LAW. ALL COMMISSIONS SHALL RUN IN THE NAME AND 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."

WHILE THIS PROVISION GIVES THE GOVERNOR POWER TO APPOINT STATE OFFICERS, UNLESS OTHERWISE COMMISSIONED BY LAW, THE GOVERNOR DOES NOT UNDER THIS POWER, HAVE THE POWER TO ESTABLISH THE TERMS OF OFFICE OF STATE OFFICERS. THE POWER TO FIX THE TERM OF AN OFFICE IS A LEGISLATIVE, NOT AN EXECUTIVE FUNCTION. BURFORD V. BOARD OF COMMISSIONERS OF LINCOLN COUNTY, 162 P. 780, 782 (OKLA. 1917).

UNDER THE CONSTITUTION AND PRESENT STATUTORY SCHEME, THE GOVERNOR'S POWER TO APPOINT OKLAHOMA HISTORICAL SOCIETY BOARD MEMBERS ENCOMPASSES THE POWER TO APPOINT INDIVIDUALS TO FILL THE TERM ESTABLISHED BY LAW. THE LAW, BY VIRTUE OF THE STATUTORY SCHEME, AND THE SOCIETY'S CONSTITUTION AND BY-LAWS, PROVIDES THAT THE TERMS OF SOCIETY BOARD MEMBERS BEGIN AND END AT THE ORGANIZATIONAL MEETING FOLLOWING THE SOCIETY'S ANNUAL MEETING. THE GOVERNOR CANNOT, BY INDICATING A DIFFERENT TERMINATION DATE, FIX A DIFFERENT TERM OF OFFICE.

CONCLUSION

THE GOVERNOR'S APPOINTMENT POWERS UNDER ARTICLE VI , SECTION 13 OF THE OKLAHOMA CONSTITUTION, PERMIT THE GOVERNOR, UNDER APPLICABLE LEGISLATION AND THE CONSTITUTION AND BY-LAWS OF THE HISTORICAL SOCIETY, TO APPOINT SOCIETY BOARD MEMBERS TO THE TERMS OF OFFICE FIXED BY LAW, BUT DOES NOT EMPOWER THE GOVERNOR TO FIX DIFFERENT TERMS OF OFFICE. UNDER THE CONTROLLING PROVISION OF THE OKLAHOMA HISTORICAL SOCIETY'S BY-LAWS, THE TERMS OF BOARD MEMBERS BEGIN AND END AT THE ORGANIZATIONAL MEETING FOLLOWING THE SOCIETY'S ANNUAL MEETING. ACCORDINGLY, GUBERNATORIAL APPOINTEES, TO THE BOARD SHOULD ASSUME THEIR OFFICE AT THE ORGANIZATIONAL MEETING FOLLOWING THE SOCIETY'S ANNUAL MEETING.

(NEAL LEADER)