STATE, EX REL. CHANNING, v. RHODES, 45 Ohio St.2d 351 (1976)

345 N.E.2d 390

No. 75-570Supreme Court of Ohio.
Decided March 31, 1976.

Governor — Appointments to office — Nominations submitted to Senate — Facsimile signature authorized — R.C. 107.15, construed — Failure to record appointment — Effect — R.C. 107.10(B) — Ohio Air Quality Development Authority — Membership qualifications — R.C. 3706.02 — Surety bond not a qualification.

1. The exception of “nominations to be submitted to the Senate for confirmation” from the class of documents authorized to be signed by a gubernatorial “facsimile signature,” as set forth in R.C. 107.15, does not apply to an appointment, prepared at the direction of the Governor, which requires the advice and consent of the Senate.

2. A failure to enter an appointment to office in the record designated by R.C. 107.10(B), affects neither the validity of the appointment, the efficacy of the Senate’s advice and consent thereto, or the appointee’s claim to office.

3. Under R.C. 3706.02, the giving of a surety bond by members of the Ohio Air Quality Development Authority is not a qualification for membership in the authority, but is a precondition to the subsequent issue of revenue bonds by the authority.

IN MANDAMUS.

A vacancy occurred within the Ohio Air Quality Development Authority, a respondent herein (hereinafter “Authority”), on January 3, 1975, with the death of member Robert H. Trenkamp. Thereupon, the staff of Governor John J. Gilligan set out to fill that vacancy for the unexpired portion of the term which ends June 30, 1979.

By affidavit, Governor Gilligan states as follows:

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“* * * [O]n Saturday, January 11, 1975, pursuant to Section 3706.02, Ohio Revised Code, in his capacity as Governor of the state of Ohio, he appointed Gayle S. Channing as a Member of the Ohio Air Quality Development Authority for an unexpired term beginning January 4, 1975, and ending at the close of business on June 30, 1979, which term was vacated by reason of the death of Robert H. Trenkamp. * * * [H]e [Gilligan] directed Robert Daley, who was then Assistant to the Governor, to place affiant’s signature together with the Great Seal of the state of Ohio on that date upon a Letter of Appointment * * * [and] directed Robert Daley to transmit such Letter of Appointment to the Ohio Senate on January 11, 1975.”

Robert E. Daley’s affidavit confirms receipt of Governor Gilligan’s instructions and states that “* * * in accordance with the direction of Governor Gilligan, he [Daley] mechanically placed the signature of the Governor and affixed the Great Seal of the state of Ohio on Exhibit A [Letter of Appointment herein] on January 11, 1975, and instructed members of the Governor’s staff to transmit such exhibit to the Ohio Senate in accordance with the Governor’s direction.”

On January 11, 1975, one Sara A. Sibley was employed in the office of Governor Gilligan as “a special assistant * * * for appointments to boards and commissions.” In her deposition, Miss Sibley acknowledges receipt of “Exhibit A,” the Letter of Appointment for relator, after the seal and Governor’s signature had been affixed thereon, and states that at “probably around 2:30 or 3:00 o’clock that afternoon [of January 11, 1975],” she personally placed “Exhibit A” (along with other Letters of Appointment) in the hands of a person, whose identity she could not recall at the time of the deposition, but who had come down to the Governor’s office, waited, paced and waited for the completion of the appointments. Miss Sibley identified the recipient of Exhibit A as being from the Ohio Senate and not from the Governor’s office, as follows:

“CROSS-EXAMINATION
“By Mr. Chadeayne;

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“Q. I just have one last question. We are badgering your memory about the 11th, but the person to whom you delivered Exhibit A and other appointments the afternoon of January 11, and whose name you can’t recall, this person was not a member of the Governor’s staff?

“A. No.

“Q. Was it at least your understanding or thought that he or she was a member of the Senate Clerk’s staff?

“A. All I recall is that it was someone in some way associated with the Senate, either a Page, a member of the Senate Clerk’s staff, a member of the Ohio Senate staff, someone that at that time, you know, I was aware was a reputable person associated with the Ohio Senate in some way that would deliver those upstairs.

“Q. It came from the Senate and not from the Governor’s office? That was the only thing I was trying to clarify?

“A. Right.”

Gubernatorial appointments are delivered to and reviewed by the office of the Senate Clerk. William H. Chavanne, Senate Clerk on January 11, 1975, upon deposition, testified that he was absent from the Senate Clerk’s office “from approximately 3:00 until about 6:00, 6:30.” During that period, the deputy clerks, Carol Long and John Rowe, in charge of the office, and Mr. Chavanne’s secretary, Cleo Horton, since deceased, were present in the office. Mr. Chavanne has no recollection of seeing relator’s Letter of Appointment in his office on January 11. His records indicate that it was “recorded” in his office on January 13, but that “sometimes” the arrival of appointments is not recorded on the “exact date” of arrival. The Senate adjourned for the weekend just after 7:00 p.m. on Saturday, January 11, 1975. There has been no submission of testimony from other employees of the Senate Clerk’s office.

At 12:01 a.m., Monday, January 13, 1975, James A. Rhodes succeeded John J. Gilligan as Governor.

Mr. Chavanne started work at 8:00 on January 13, and submitted “to the Senate” relator’s Letter of Appointment, along with two others for Richard D. Burk, to the Rehabilitation

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Services Commission, and for Richard Murray, to the Advisory Council to Board of Nursing Education and Nurse Registration, as the Senate went into session, which occurred at 10:30 a.m. The President of the Senate “handed down” the three Letters of Appointment to the Senate.

By deposition, John M. McElroy, Executive Assistant to Governor Rhodes from January 13 through February 1975, describes his actions in connection with relator’s appointment, as follows:

“A. * * * [A]t the time we moved into the offices * * * word came to me in some way, and I don’t know just why, but some appointment had been sent up from the Governor’s office that morning [January 13, 1975] by the outgoing Governor or some of his staff and it was the position of the new administration if there were any appointments to be made on the 13th, they should be appointments by the new administration. And among the ones that wound up — and I think there were two or three of them — maybe three — one was Gayle Channing.

“Q. [Mr. Scuro] Okay. Now, what action did you take with regard to the Channing appointment?

“A. I can only tell you that I think I probably was the one who did it. I don’t have a clear recollection, but I think that I probably dictated a letter to the Clerk of the Senate and had it hand delivered to him.

“Q. Okay. Did you follow up that letter with any other contact at the Clerk’s office?

“A. Later on — I do have a specific recollection of this — that later on on the Senate floor in the rear of the chamber, that I ran into Bill Chavanne and mentioned to him that the Governor had recalled the appointments that had been set up that morning, and asked him if he received the message. He replied, `yes,’ that he had.

“* * *

“Q. [Mr. Scuro] I just wanted to pinpoint one point I neglected to get to earlier. Your conversations with Mr. Chavanne on the day of the inauguration, what time of day were they to the best of your knowledge?

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“Mr. Teaford: Object. Have we established that that’s when those conversations took place?

“Mr. Chadeayne: I think he testified to that.

“The Witness: I think so, and I don’t recall, but I think it would have to be after Rhodes was sworn in. There would be no reason for it to happen in the morning.

“Q. (by Mr. Scuro) Do you know what time that was Governor Rhodes was sworn in?

“A. Similar to noonish. That was officially. I had really swore him in before so that he was Governor all day.

“* * *

“Q. [Mr. Teaford] This conversation that you had with Mr. Chavanne, do you recall what your exact words were to Mr. Chavanne?

“A. Probably just what I told you, that `The Governor has recalled the nominations that were sent up there earlier this morning.’

“Q. Were names of the nominees mentioned?

“A. Not at that time, to my recollection. No one else would send papers to the Clerk’s offices except the Governor.”

Mr. Chavanne’s version of contacts with Mr. McElroy is contained in his deposition, as follows:

“Q. [Mr. Teaford] Did you have a discussion with her [your secretary, Cleo Horton] that day with regard to the appointment of Gayle Channing?

“A. No, sir.

“Q. Did you have any discussion with her [Mrs. Horton] that day with regard to conversations she had had with John McElroy?

“A. Yes, I did. She told me sometime midmorning that Mr. McElroy had called and said that he was asking that the appointment of Mr. Burke [sic] to the Rehabilitation Commission be withdrawn and not be presented to the Senate.

“Q. Now, on January 13, did you have any conversation with Mr. McElroy yourself? That is, on January 13, Monday?

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“A. No, I did not, no.

“Q. Now, going to January 14, did you have any conversations with Mr. McElroy?

“A. Yes, for one reason or another, I was down around the Governor’s office at the entrance of the Governor’s office, Mr. McElroy came by with one or more of his aides and asked me if I had gotten — if Cleo had given me the — Mrs. Horton had given me the message that he sent up yesterday and I said, `Yes,’ that she had, and I believe I added that `I ignored it.’

“Q. Now, in your conversation with Mr. McElroy, was there any discussion of Gayle Channing?

“A. No.

“* * *

“Q. [Mr. Chadeayne] I believe you testified that on neither Monday, January 13, nor on Tuesday, January 14 did you have any conversations with John McElroy concerning Gayle S. Channing’s appointment?

“A. That’s correct.

“Q. Is that your testimony?

“A. That’s correct.

“Q. Did any other representative of Governor Rhodes office converse with you about Gayle Channing on either of those dates?

“A. No, sir. Mr. McElroy — the only conversation I had with Mr. McElroy was that, he asked me if I had gotten the message. I had no conversation about any person directly with Mr. McElroy, and my secretary indicated that Mr. Burke [sic], they were objecting to.

“Q. That was the only name, Burke [sic], that you were aware of from Mrs. Hortin’s [sic] conversation?

“A. Yes, sir.”

On January 14, 1975, the Senate Rules Committee reported back to the Senate on the three appointments submitted on January 13, and unanimously recommended “that the Senate advise and consent to said appointments.” The report of the Committee was accepted, and the Senate unanimously “advised and consented to said appointments.”

Relator took an oath, pursuant to R.C. 3706.02, on

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January 22, 1975, and thereafter participated in the business and performed the duties of a member of the Authority through June 19, 1975.

By letter dated May 20, 1975, Thomas J. Moyer, another Executive Assistant to Governor Rhodes, notified relator that her appointment by Governor Gilligan was “not legally valid.”

By interoffice communication dated June 9, 1975, Mr. Moyer notified the Authority that relator, was not a “de jure member” of the Authority and instructed that she not receive “any additional monies from the Authority” and that the Authority “take formal action to provide that the vote of * * * [relator] not be recorded on any matter before the Authority.”

On June 19, 1975, the Authority passed a resolution barring relator from any compensation and from participation in Authority business. Gayle S. Channing has attended all meetings of the Authority since June 19, 1975, but has not been permitted to participate in the transaction of any business of the Authority since that date.

Governor Rhodes has attempted to appoint one Walter F. Heer, Jr., to the vacancy in the Authority.

Relator is a resident of and an elector in the state of Ohio, and prays for a writ requiring Governor Rhodes to approve her surety bond and requiring the Authority to (1) permit her to participate in the business of the Authority and (2) pay her the compensation due her from May 24, 1975, until the conclusion of her term on June 30, 1979.

Messrs. Teaford Bernard, Mr. Hamilton J. Teaford and Mr. Jeffrey A. Rich, for relator.

Mr. William J. Brown, attorney general, Mr. Joseph E. Scuro, Jr., and Mr. David H. Beaver, for respondent James A. Rhodes, Governor.

Messrs. Bricker, Evatt, Barton Eckler, Mr. William R. Chadeayne and Mr. G. Roger King, for respondent Ohio Air Quality Development Authority.

WILLIAM B. BROWN, J.

This case invokes the original jurisdiction of this court in mandamus, and presents the

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question whether the respondents, the Ohio Air Quality Development Authority and Governor James A. Rhodes, have illegally acted to deprive relator, Gayle S. Channing, of her membership in the Authority.

Membership qualifications for the Authority are set forth in R.C. 3706.02, which reads, in pertinent part, as follows:

“There is hereby created the Ohio Air Quality Development Authority. Such authority is a body both corporate and politic in this state * * *.

“The authority shall consist of seven members as follows: five members appointed by the Governor, with the advice and consent of the Senate, no more than three of whom shall be members of the same political party, and the Director of Environmental Protection and the Director of Health, who shall be members ex officio without compensation. Each appointive member shall be a resident of the state, and a qualified elector therein. * * * Appointed members’ terms of office shall be for eight years, commencing on the first day of July and ending on the thirtieth day of June. Each appointed member shall hold office from the date of his appointment until the end of the term for which he was appointed. Any member appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed shall hold office for the remainder of such term. Any appointed member shall continue in office subsequent to the expiration date of his term until his successor takes office, or until a period of sixty days has elapsed, whichever occurs first. A member of the authority is eligible for reappointment. Each appointed member of the authority, before entering upon his duties, shall take an oath as provided by Section 7 of Article XV, Ohio Constitution. The Governor may at any time remove any member of the authority for misfeasance, nonfeasance, or malfeasance in office. * * * Four members of the authority shall constitute a quorum, and the affirmative vote of four members shall be necessary for any action taken by vote of the authority. No vacancy in the membership of the authority shall impair the rights of a quorum

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by such vote to exercise all the rights and perform all the duties of the authority.

“Before the issuance of any air quality revenue bonds under Chapter 3706 of the Revised Code, each appointed member of the authority shall give a surety bond to the state in the penal sum of twenty-five thousand dollars and the Secretary-Treasurer shall give such a bond in the penal sum of fifty thousand dollars, each such surety bond to be conditioned upon the faithful performance of the duties of the office, to be executed by a surety company authorized to transact business in this state, and to be approved by the Governor and filed in the office of the Secretary of State. Each appointed member of the authority shall receive an annual salary of five thousand dollars, payable in monthly installments. Each member shall be reimbursed for his actual expenses necessarily incurred in the performance of his duties. * * *”

Relator alleges that Governor Gilligan’s appointment and the Senate’s advice and consent thereto were legal and proper and vest her with membership in that Authority; that R.C. 3706.02 has been complied with; that her attempts to give a surety bond pursuant to R.C. 3706.02 have been frustrated by the Governor’s refusal to approve such bond; and that the Authority cannot bar her participation in its business nor bar her from receiving compensation.

Respondents deny that relator is a duly appointed and qualified member of the Authority, for the following reasons: (1) The appointment is invalid or incomplete because (a) it is inscribed with a facsimile signature rather than the handwritten signature of Governor Gilligan, in contravention of R.C. 107.15, and (b) the appointment is not recorded in the appointment record kept in the Governor’s office, in contravention of R.C. 107.10(B); (2) the appointment was improperly transmitted to the Senate; (3) the appointment was withdrawn by Governor Rhodes before the Senate vote to advise and consent; and (4) the surety bond requirement of R.C. 3706.02 has not been met by relator thus constituting a refusal of office pursuant to R.C. 3.30. We shall address those arguments gradatim.

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The Appointment
R.C. 107.15 empowers the Governor to utilize a “facsimile signature,” as defined therein, on “any document except enrolled bills enacted by the General Assembly, nominations to be submitted to the Senate for confirmation, clemency actions, interstate compacts, and agreements with the federal government * * *.” (Emphasis added.) Without deciding whether the Governor may properly authorize use of his facsimile signature on documents purported to be excepted from R.C. 107.15, we need only determine herein whether relator’s Letter of Appointment is a nomination to be submitted to the Senate for confirmation, within the meaning of R.C. 107.15.

Members of the Authority are “appointed by the Governor, with the advice and consent of the Senate.” At least 114 sections of the Revised Code provide for gubernatorial appointments with the Senate’s advice and consent.[1] See, also, Section 21 of Article III, Section 22 of Article IV, and Section 2 of Article VII of the Ohio Constitution. Only R.C. 107.15 mentions a gubernatorial nomination followed by Senate confirmation. Two forms of officer selection do exist. As Judge Matthias stated i State, ex rel. Brothers, v. Zellar (1966), 7 Ohio St.2d 109, 112:

“It must be noted at the outset that unlike the practice in some states where the Governor nominates an individual for an office and such nomination is sent to the

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Senate for confirmation before the appointment is made, the procedure in Ohio is that the appointment is actually made by the Governor prior to its submission to the Senate.” (Emphasis added.)

Accordingly, this court holds that the use of a facsimile signature on a Letter of Appointment, which is authorized by the Governor to be prepared, does not contravene the provisions of R.C. 107.15.

Respondents assert further that the appointment is incomplete because it is not recorded in the Governor’s record, as required by R.C. 107.10, which, in pertinent part, reads:

“The following records shall be kept in the Governor’s office:

“* * *

“(B) An appointment record in which is entered the name of each person appointed to an office by the Governor, except notaries public and commissioners, the office to which appointed, the date of the appointment, the date of the commission, the date of the beginning and expiration of the term, and, the result and date of action by the Senate, if required.”

Respondents’ assertion cannot be sustained because the language of R.C. 107.10(B) itself clearly shows that recordation is not contemplated until after the Senate has acted on the appointment. The recordation requirement is to set forth a history of each appointment, at some time after the end of the process of appointment and advice and consent. Relator’s appointment has not been recorded, first, because Governor Rhodes has contested the appointment, and, secondly, the Gilligan administration ran out of time to so record it.[2]

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We hold that relator’s claim to office is not dependent upon recordation of the history of her appointment in the Governor’s record.

The Transmittal
Respondents challenge the validity of the transmittal of relator’s Letter of Appointment to the Senate. That claim is based upon the assumption that the evidence “establishes beyond any reasonable doubt that relator’s purported nomination was not, in fact, delivered to the [Senate] Clerk’s office until Monday morning, January 13, 1975.” Respondents conclude, then, that the appointment “* * * was not transmitted to the Senate until after
Governor Gilligan’s term of office had expired and then by an unknown person who was neither a member of Governor Gilligan’s staff nor a member of Governor Rhodes’ staff and who was not authorized by Governor Rhodes to do so.

“In these circumstances the best that can be said for relator’s alleged appointment as a member of respondent Authority is that Governor Gilligan intended to appoint her to that office but the fact remains that that intention was never executed in the manner required by law before Governor Gilligan’s term of office expired.” (Emphasis sic.)

Upon reviewing the evidence, we do not accept respondents’ premise that transmittal occurred on January 13. Rather, the clear testimony of Miss Sibley is that on January 11, 1975, she handed over the Letter of Appointment to a “reputable person associated with the Ohio Senate in some way that would deliver those [the appointments] upstairs.” We reject respondents’ allegation of improper transmittal.

The Withdrawal
Respondents state as their position “that the Governor

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may, upon his judgment and discretion, withdraw an appointment before confirmation by the Senate,” and allege that “[o]n January 13, 1975, acting within his discretion, the Governor [Rhodes] ordered a member of his staff to recall the alleged appointment of relator from the Clerk of the Senate. However, the Clerk of the Senate refused to relinquish the alleged appointment and said appointment was acted upon by the Senate on January 14, 1975. Thus, in failing to comply with the Governor’s recall the Senate wrongfully confirmed the relator’s alleged appointment.”

We need not decide whether a Governor is empowered to withdraw or recall appointments after they have been submitted to the Senate for its advice and consent, because, again, the evidence presented does not sustain respondents’ allegations. There is no evidence that Governor Rhodes issued any orders in relation to the appointment of relator or other appointments handed down to the Senate on January 13, 1975. There is evidence, however, that the Clerk of the Senate, William H. Chavanne, submitted those appointments “to the Senate” as the Senate went into session, which occurred at 10:30 a.m. on January 13, 1975. Mr. McElroy testified that after Governor Rhodes was sworn in, which was “[s]imilar to noonish” on January 13, he [Mr. McElroy] stated to Mr. Chavanne, “that, `The Governor has recalled the nominations that were sent up there earlier this morning.'”

There is no evidence that the “Senate Clerk refused to relinquish the * * * [letter of] appointment,” as alleged by respondents. Rather, it would appear that relator’s Letter of Appointment was out of Mr. Chavanne’s hands by the time he was informed that the Governor possibly opposed the appointment. After Mr. Chavanne submitted the appointments “to the Senate,” they went to the Rules Committee and were consented to the next day. There is no evidence that the Governor, Mr. McElroy, or other members of the Governor’s staff further attempted to bring news of the purported withdrawal to the Senate. For the foregoing reasons, we must conclude that there was no effective communication to the Senate of a gubernatorial

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withdrawal of appointment, even if the Governor so intended to withdraw or recall relator’s appointment.

The Surety Bond
Paragraphs 13-15 of the agreed statement of facts read:

“13. Gayle S. Channing submitted a surety bond in the penal sum of $25,000 conditioned upon the faithful performance of the duties of the office of a member of the Authority which bond was executed by Aetna Casualty Surety Company, a surety company authorized to transact business in Ohio. This submission was made by an agent of Ms. Channing to a member of Governor Gilligan’s staff in the office of the Governor of Ohio prior to noon — prior to the inaugural ceremony of Governor Rhodes — on January 13, 1975.

“14. The Authority received an invoice dated March 11, 1975, for the premium on said surety bond which such premium has not been paid by the Authority. It is the practice of the Authority to pay ultimately bond premiums on surety bonds which have been approved by the Governor for members of the Authority who have been duly appointed and who have duly qualified for such office.

“15. Governor Rhodes has not approved Gayle S. Channing’s surety bond and has not forwarded said bond to the Secretary of State of Ohio for filing.”

Upon those facts, respondents argue that inasmuch as the invoice has not been paid, the bond is “cancellable by the insurance company. The bond has thus become insufficient as to its surety and is worthless as a surety instrument for the purpose for which it was intended.

“Pursuant to Section 3.30 Ohio Revised Code,[3] a person

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appointed to an office who fails to furnish such security as provided by law is deemed to have refused to accept the office to which such person was appointed. The only conclusion that can be drawn from relator’s failure to validate the surety bond is that she has not qualified for the position at issue in this case.”

The bond requirement in R.C. 3706.02 reads:

“Before the issuance of any air quality revenue bonds under Chapter 3706 of the Revised Code, each appointed member of the authority shall give a surety bond to the state * * * to be approved by the Governor and filed in the office of the Secretary of State.”

This court holds that such bond requirement does not purport to be a qualification for membership in the Authority, but, by the terms of R.C. 3706.02, is merely a precondition to the issuance of revenue bonds by the Authority. Accordingly, consideration of surety bonds is not pertinent to this action.

Conclusion
In consideration of the foregoing, we find that relator was appointed by the Governor to a seat on the Authority, that such appointment was unanimously advised and consented to by the Senate, and relator served, in full compliance with the qualifications for office set forth in R.C. 3706.02, until excluded from service by the actions of respondents. Respondents have shown no legal basis for so excluding relator. Therefore, a writ will issue.

Writ allowed.

O’NEILL, C.J., HERBERT, STERN and P. BROWN, JJ., concur.

CORRIGAN and CELEBREZZE, JJ., dissent.

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