By executive order, appellant, the Honorable David Hall, Governor of the State of Oklahoma, removed appellee, L. C. Tir-ey, Jr., from his position as a member of the State Board for Property and Casualty Rates. Appellant charged that appellee communicated privately with the attorney for a party to a proceeding before the Board in violation of 75 O.S.1971, § 313. Appellant also charged that appellee violated 36 O.S.1971, § 331(B), by becoming an agent for a firm appearing in proceedings before the Board. The charges against ap-pellee were based on a letter from the local counsel for Insurance Services Offices to Lawrence Berman, New York counsel for ISO. On the date of the letter, ISO was participating in a rate hearing before the Board. After mentioning motions submitted to the Board by the Attorney General, the letter stated in part:
“Chris Tirey called me at home last night after the latest piece in the paper reporting those motions and Derryberry’s press release. He is mad. I am keeping him cool for the time being but we can get him to blast the Attorney General whenever we want him to.”
In the executive order, appellant provided that the removal would not become finally effective if appellee requested a hearing within three days and that the removal would be stayed pending a hearing. However, appellant suspended appellee immediately and provided that the suspension would remain in effect until after the matter had been finally determined.
Responding to the executive order, ap-pellee denied the charges and requested a hearing. Appellee also challenged the power and authority of appellant to remove or suspend him from office. Further, ap-pellee stated that he would continue to perform the duties of his office and would refuse to recognize or obey the executive order.
Appellant appointed a hearing examiner to conduct the hearing requested by appel-lee. Before the hearing, the examiner stated that he would not decide the case, nor would he recommend findings of fact or conclusions of law; he indicated that his only function was to conduct the presentation of evidence.
At the hearing, appellee again challenged the power and authority of appellant to remove him from office. After this challenge and other motions of appellee had been overruled, appellant introduced a certified copy of the executive order with a copy of the letter attached, appellee’s response to the executive order, a copy of appellant’s notice to appellee of the time and place for the hearing, and a transcript of proceedings before the Board on the date that the letter was read to the Board by the Attorney General. With the introduction of these documents, appellant rested his case. Then appellee testified in his own behalf. He admitted placing a call to the local counsel for ISO, but denied being mad or making any statement about blasting the Attorney General. Appellee also denied discussing any issues of fact or law related to the proceeding before the Board. On cross examination, appellee testified that he made the call to determine if ISO was planning to furnish information requested in motions filed by and discussed in press releases issued by the Attorney General.
After the hearing had been concluded and a transcript prepared, appellant entered a final order of removal which included findings of fact and conclusions of law. Appellant concluded that appellee vi
“Unless required for the disposition of ex parte matters authorized by law, members or employees of an agency assigned to render a decision or to make findings of fact and conclusions of law in an individual proceeding shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or his representative, except upon notice and opportunity for all parties to participate.”
Appellant also concluded that appellee violated that part of 36 O.S.1971, § 331(B), which provides:
“No member of the Board or any employee of the State Insurance Department shall represent, directly or indirectly, in any capacity or for any consideration, an admitted or nonadmitted insurer or any person, firm or corporation who has or who may have proceedings before the State Insurance Department.”
Further concluding that these statutory violations constituted cause for removal, appellant ordered appellee removed from his position as a member of the State Board for Property and Casualty Rates effective on the date of appellee’s suspension under executive order.
Following appellant’s final order of removal, appellee sought judicial review of his removal by the district court. After reviewing the hearing record, the district court ruled that the record contained no evidence which would constitute sufficient cause to warrant appellee’s removal from office. Accordingly, the district court ordered appellee reinstated to his position as a member of the State Board for Property and Casualty Rates.
First, we must consider the power and authority of appellant to remove appel-lee from office. Under the provisions of 74 O.S.1971, § 2, "[t]he Governor shall have power to remove any officers appointed by him, in case of incompetency, neglect of duty, or malfeasance in office. . ” Appellant’s predecessor appointed appellee to his office. Thus, unless a special statute limits the Governor’s general removal power granted by 74 O.S.1971, § 2, appellant clearly had the power to remove appellee from office for any of the causes provided in 74 O.S.1971, § 2. Wentz v. Thomas,
Title 36 O.S.1971, § 331(A), provides for the removal of appointive members of the State Board for Property and Casualty Rates. Section 331(A) provides in part:
“There is hereby created the State Board for Property and Casualty Rates composed of the Insurance Commissioner and two members to be appointed by the Governor, by and with the advice and consent of the Senate.The Governor shall designate one appointed member as Secretary of the Board. . The appointed members of the Board shall hold office for the term of their appointment [six years] and shall be removed only for cause.”
Does this special statute limit the Governor’s general removal power under 74 O. S.1971, § 2? We think not. Instead, we believe the two sections should be construed together.
Although 36 O.S.1971, § 331(A), provides that appointive Board members can be removed only for cause, the section does not specify what constitutes cause, nor does it designate the removing authority. In our opinion, the Legislature did not deem it necessary to specify what constituted cause in 36 O.S.1971, § 331(A), because the causes for removal from an appointive office had been enumerated in 74 O.S.1971, § 2. Likewise, the Legislature did not designate a removing authority in
Relying on the statement from State ex rel. Williamson v. Evans, Okl.,
Appellee also contends that appellant had no power to remove him from office because he is a quasi-judicial officer and thus not subject to removal by the Governor. To support this contention, ap-pellee relies on State ex rel. King v. Rowe,
Next, we must decide whether appellee is entitled to a judicial determination of the legality of his removal from office. Appellant argues that his decision to remove appellee from office is final and not subject to judicial review. For this argument, appellant relies primarily on Bynum v. Strain,
From 1957 to 1965, Title
“There is hereby created the State Insurance Board, composed of the Insurance Commissioner and two members to be appointed by the Governor, by and with the advice and consent of the Senate. The appointed members shall serve conterminous with and at the pleasure of the Governor.” (Emphasis ours.)
Okl.Sess.Laws 1957, tit. 36, art. 3, § 331(A); Okl.Sess.Laws 1965, ch. 60, § 4. When the Legislature changed the term of appointive Board members to six years and prohibited their removal except for cause, the Legislature undoubtedly intended to create an independent Board which would act in the best interest of the people of the state. Primarily, the Board’s duties consist of approving or disapproving rates filed by insurance firms. As long as the appointed members of the Board served at the pleasure of the Governor, they were subject to his control and policies. Approval or disapproval of rates is to be based on standards established by the Legislature, not policies formulated by the Governor. To determine whether rate filings comply with
From our review of the history of 36 O. S.1971, § 331(A), we conclude that the Legislature intended to create an independent administrative board free of the influence that a Governor can assert if the board’s members serve at his pleasure. Thus, the Legislature intended to preclude removal of appointive members of the State Board for Property and Casualty Rates except for cause. 36 O.S.1971, § 331(A); Humphrey’s Executor v. United States,
Although the Legislature obviously intended to preclude removal of appointive Board members except for cause, the Legislature did not specifically provide a forum in which a Board member could challenge the legality of his removal from office. However, considering the nature of the Board and the history of 36 O.S.1971, § 331(A), we do not believe the Legislature intended to preclude a judicial determination of the legality of the removal of a Board member. Consequently, if a Board member desires to challenge the legality of his removal, we conclude that he is entitled to have the courts decide whether his removal complied with the standards established by the Legislature in
In Bynum v. Strain,
Similarly, in Cameron v. Parker,
Now, we must determine the procedure to be followed to obtain a forum for judicial review of the legality of the removal of a member of the State Board for Property and Casualty Rates since the Legislature did not provide a procedure in 36 O.S.1971, § 331(A), or 74 O.S.1971, § 2. Absent a specific legislative enactment subjecting removal actions of the Governor to the Administrative Procedures Act, 75 O. S.1971, § 301 et seq., we do not believe the Act applies to removals by the Governor.
In City of Tulsa v. District Court of Tulsa County,
Since the proper procedure for determining the legality of removal from office was not followed in this case, the judgment of the trial court must be vacated. However, we will not order appellee’s petition for review dismissed because the proper procedure was not settled prior to this decision. Instead, we will allow the trial court to treat the petition for review as a petition for writ of mandamus, but appellee must amend the petition to show that he is entitled to a writ of mandamus and must substitute the payroll officers of the state for the Governor. Therefore, the trial court is directed to grant appellee time to amend his petition for review and to substitute the proper parties as defendants. If appellee amends his petition and substitutes parties, the trial court will then proceed as if appellee had commenced an original mandamus action. If not amended, the trial court should dismiss the action. To allow appellee time to request from the trial court a stay of the final order of removal from office, the effective date of the vacation of the judgment of the trial court will be 15 days from the date this decision becomes final.
Judgment vacated, and case remanded for further proceedings.