115 N.H. 385 | N.H. | 1975
To His Excellency the Governor and the Honorable Council:
Your resolution presents to this court the question whether the Governor and Council or the commissioner of resources and economic development is the “appointing authority” of the State director of economic development, as that term is used in RSA 4:1. See RSA 12-A:2 (Department of Resources and Economic Development: Commissioner), :3 (Director of Divisions).
Insofar as it pertains to the issue before the court, RSA 4:1 (Powers of the Governor and Council: Removal of Public Officers for Cause) provides that “no official of the state outside of the state classified service shall be discharged or removed except by the governor and council for malfeasance, misfeasance, or inefficiency in office, or incapacity or unfitness to perform his duties, or for the good of the department, agency or institution to which he is assigned. The attorney-general, or the appointing authority of such official may petition the governor and council for his removal, setting forth the grounds and reasons therefor....” In Barry v. King, 106 N.H. 279, 281, 210 A.2d 161, 162 (1965), this court decided that “[u]nder RSA 4:1 the Governor and Council
RSA 12-A:3 stipulates that the “commissioner (of resources and economic development) shall nominate for appointment by the governor and council a ... director of economic development... (who) shall serve, subject to the provisions of RSA 4:1....” Whether the Governor and Council or the commissioner of resources and economic development is the “appointing authority” contemplated by RSA 4:1 depends upon the definition of that term and upon an interpretation of the specific language used in RSA 12-A:3. The phrase “appointing authority” generally denotes the power to designate a person to occupy and to discharge the duties of an office or a position. See McAdams v. Barbieri, 143 Conn. 405, 417, 123 A.2d 182, 188 (1956); State v. Ferguson, 142 Ohio 496, 504, 52 N.E.2d 980, 984 (1944).
RSA 12-A:3 states that the commissioner of resources and economic development “shall nominate for appointment by the governor and council” a director of economic development. While the terms “nominate” and “appoint” may be synonymous under some circumstances (See, e.g., Wilson v. Stump, 310 Mass. 614, 617, 39 N.E.2d 416, 418 (1942)), the use of these two words in RSA 12-A:3 gives them each different meanings. As used in the statute “nominate” means to propose a candidate for appointment. Fiscella v. Nulton, 22 N.J. Super. 367, 375, 92 A.2d 103, 107 (1952); State v. Barker, 113 Fla. 865, 868, 152 So. 682, 683 (1934). The “appointment” envisioned by RSA 12-A:3 is the act of exercising the executive authority to officially place a nominee in office, thereby conveying to him the title and all of the incidents of office. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 156-57 (1803).
Under the express language of RSA 12-A:3 the commissioner of resources and economic development shall “nominate”, whereas the Governor and Council “appoint”. The functions are distinctly separate and interdependent ones. The commissioner of resources and economic development has no authority to appoint the director of economic development; he only has the power to nominate for appointment. While the Governor and Council have the powers to appoint and to remove the director of economic development, they do not have the capacity to nominate for appointment. RSA 4:1; see Withrow v. Larkin, 421 U.S. 35, 46-53 (1975). Both generally recognized definitions and the language of RSA 12-A:3 compel the conclusion that the Governor and Council
July 15, 1975.
