Opinion of the Justices, 266

• Decision Date: 05 December 1995
• Docket Number: No. 266,1995,266
• Citation: 672 A.2d 4
• Parties: OPINION OF THE JUSTICES. . Submitted:
• Court: Supreme Court of Delaware

Page 4

672 A.2d 4

OPINION OF THE JUSTICES.

No. 266, 1995.

Supreme Court of Delaware.

Submitted: Dec. 5, 1995.

Decided: Dec. 20, 1995.

Question Answered. Affirmative.

Henry N. Herndon, Jr. (argued), and Barbara MacDonald of Morris, James, Hitchens & Williams, Wilmington.

Harold Schmittinger and Noel E. Primos (argued), of Schmittinger & Rodriguez, P.A., Dover.

Before VEASEY, C.J., WALSH, HOLLAND, HARTNETT and BERGER, JJ.

IN RE: REQUEST BY THE 138TH GENERAL ASSEMBLY FOR AN ADVISORY OPINION

To SENATOR RICHARD S. CORDREY, President Pro Tempore of the Senate, and REPRESENTATIVE TERRY R. SPENCE, Speaker of the House of Representatives:

The General Assembly has requested an Opinion of the Justices concerning the proper construction of Article XV, § 5 of the Constitution of the State of Delaware. The text of the concurrent resolution reads, in pertinent part, as follows:

BE IT RESOLVED by the Senate of the 138th General Assembly of the State of Delaware, the House of Representatives concurring therein, that the General Assembly hereby requests an Opinion of the Supreme Court as to whether or not board and commission members appointed under Titles 23 and 24 are "public officers" for the purposes of Article XV, § 5.

Jurisdiction

The Justices of this Court are authorized to give advisory opinions on questions "touching the proper construction of any provision in the Constitution of this State," when requested to do so by a resolution of a majority of the members of the General Assembly. 10 Del.C. § 141(a) (Supp.1994). Opinions of the Justices of the Supreme Court are limited to questions of law. Opinion of the Justices, Del.Supr., 382 A.2d 1364, 1366 (1978).

Question Presented

Appointment of Counsel

The Justices accepted the General Assembly's request and framed the legal question which is the subject of their advisory opinion, as follows:

Are board and commission members appointed under Titles 23 and 24 of the Delaware Code "public officers" for the purposes of Article XV, § 5 of the Constitution of the State of Delaware?

The Justices then appointed Henry N. Herndon, Jr., Esquire, of Morris, James, Hitchens & Williams, and Harold Schmittinger, Esquire, of Schmittinger & Rodriguez, P.A., to take adversary positions with respect to the question presented. 10 Del.C. § 141(b) (Supp.1994). Mr. Herndon was asked to take the affirmative position. Mr. Schmittinger was asked to take the negative position. Appearing with Mr. Herndon was Barbara MacDonald, Esquire. Appearing with Mr. Schmittinger was Noel E. Primos, Esquire. All counsel participated pro bono publico. The Court is grateful to each of them for the valuable service they have rendered, in accordance with the highest traditions of the Delaware Bar.

Article XV § 5

History and Purpose

Article XV, § 5 of the Delaware Constitution provides that "[a]ll public officers shall hold their respective offices until their successors shall be duly qualified, except in cases herein otherwise provided." No other provision of the Delaware Constitution affects the ability of members of statutorily created boards or commissions to hold over in office. Article XV, § 5 applies to those public offices created by statute as well as those established by the Constitution itself. Opinion of the Justices, Del.Supr., 305 A.2d 607 (1973); State ex rel. Southerland v. Caulk, 33 Del. 344, 138 A. 354, 356-57 (1927).

Delaware adopted a general "holding over" provision for the first time ¹ as part of Miscellaneous Article XV in its 1897 Constitution. ² Del. Const. art. XV § 5. "The purpose of a holding over provision is to prevent a possible vacancy or interregnum in a public office ... so that the public business will not be interrupted or subjected to doubt or dispute." Walker v. Hughes, 42 Del. 447, 36 A.2d 47, 50 (1944). "Section 5 of [A] rticle 15 was apparently enacted for the very purpose of preventing a possible vacancy or interregnum in an office where there was not a properly qualified successor at the expiration of the usual statutory term of such office." State ex rel. Southerland v. Caulk, 33 Del. 344, 138 A. 354, 355 (1927). Accord Barron v. Kleinman, Del.Supr., 550 A.2d 324, 325 (1988); State ex rel. Gebelein v. Killen, Del.Supr., 454 A.2d 737, 748 (1982).

If the members of boards and commissions appointed, pursuant to Titles 23 and 24 of the Delaware Code, are not permitted to hold over, causing vacancies among the members, the result is an interruption in the capacity of the body to convene a quorum or to garner the number of affirmative votes to conduct business. Most of the governing statutes for the boards and commissions in Titles 23 and 24 provide that a majority of their members constitutes a quorum. ³ In requesting our opinion, the General Assembly expressed its concern that certain requirements ⁴ of the Joint Sunset Committee regarding board and commission members not holding over may be in conflict with Article XV § 5 of the Delaware Constitution.

General Rule

Public Officers

The members of the Title 23 and 24 regulatory boards or commissions will hold over if they are "public officers," as that phrase is used in Article XV, § 5. Title 23 Del.C. §§ 100-138 establishes the Board of Pilot Commissioners, which licenses and regulates the State's Delaware River and Bay pilots. Title 24 establishes other boards and commissions charged with the oversight of various professions and occupations.

Those courts and authorities which have considered the issue have decided that, in general, board or commission members are public officers. ⁵ Delaware has recognized and followed that general rule:

Members of boards or commissions in this State, unless provided for otherwise by legislation, are not employees in the usual sense of the word.... Historically they have been regarded as public officers and not public employees.

Wharton v. Everett, Del.Super., 229 A.2d 492, 494 (1967), aff'd, 238 A.2d 839 (1968). This Court has determined that a member of the former Board of Fish and Game Commissioners occupied an office under the State for purposes of Article II, § 14 of the Delaware Constitution. See State ex rel. Biggs v. Corley, 36 Del. 135, 172 A. 415 (1934).

Question Presented

Public Officers Criteria

No single definition will dispositively identify who is a "public officer," as that term is used in several separate sections of the Delaware Constitution. ⁶ In determining who is a public officer, this Court has identified four non-exclusive criteria which are most frequently indicative of a public office: (1) the exercise of some portion of the State's sovereign power, (2) tenure in office, (3) fees and emoluments, and (4) oaths of office. Opinion of the Justices, Del.Supr., 245 A.2d 172, 174 n. 2 (1968). ⁷ The professional licensing boards created by Titles 23 and 24 meet most, and in some cases all, of these four criteria.

First, the Title 23 and 24 boards or commissions each exercise a portion of the State's sovereign power through their authority to examine, to license or certify, and to discipline the members of the respective professions. This Court has observed:

If the imposition [of a license requirement] has for its primary object the discouragement of dangerous employments, the protection of the safety of the public, or of citizens, or the regulation of relative rights, privileges or duties as between individuals, then the legislation may fairly be regarded as an exercise of the police power for the public welfare.

Conard v. State, 41 Del. 107, 16 A.2d 121, 125 (1940). All of the professional licensing boards and commissions of Titles 23 and 24 meet this criterion. Consequently, all Title 23 and 24 boards or commissions exercise some portion of the sovereign power of the State. ⁸

Second, the members of all the twenty-nine boards and commissions in question are appointed to serve for a statutorily stated term of years. The tenures vary in length, but all board members are appointed for definite terms. Consequently, the criteria of "tenure" and "duration" also are met for all of the boards or commissions.

Third, with the single exception of the Board of Pilot Commissioners, the statutes regarding each of the professional licensing boards provides that the members will receive a fee for their service. ⁹ The sums are nominal. Nevertheless, the payments are "fees" pertaining to the respective board or commission members "offices."

For the most part, members are entitled to receive not more than $500 per year. ¹⁰ Article III, § 9 of the Delaware Constitution of 1897 concerning the Governor's power to appoint "officers," provides that Senate confirmation of such appointments is required only when "the salary, fees and emoluments of office shall exceed the sum of five hundred dollars annually." The $500 limit itself is indicative that the members of these boards are "officers."

Finally, several of the governing statutes require the professional licensing board or commission members to take such an oath of office. ¹¹ The presence of an oath requirement may be helpful in a close case to decide whether a particular position is an office. The absence of an oath requirement, however, does not negate "public officer" status which is otherwise clearly conferred. State ex rel. Green v. Glenn, 39 Del. 584, 4 A.2d 366, 367 (1939). The oath is considered a "mere incident" of the office.

Conclusion

Affirmative Answer

Each member of a board or commission appointed, pursuant to Title 23 or 24 of the Delaware Code, possesses the essential characteristics of a public officer. The members of these boards or commissions are authorized by statute to exercise part of the sovereign powers of the State. In discharging the responsibility of licensing various professions, those boards or commissions promote the public health, safety and welfare. Titles 23 and 24 also confer tenure, as well as some or all of the other criteria which are characteristic of public office, upon the...