IN RE: Request of the GOVERNOR FOR an OPINION OF the JUSTICES. (2010)

OPINION

You have submitted your request for the Justices' opinions because the Delaware Constitution, Article III, Section 11, prevents the Governor from also holding “an office of the United States.”¹⁵ That service would operate to effectively resign your governorship.¹⁶ We must consider whether, by advising on procedures to assemble and disseminate the National Assessment, the Governing Board constitutes “an office of the United States.” We focus primarily on whether, in holding both positions, you might face a conflict in exercising Delaware and the United States sovereign authorities.¹⁷

In earlier opinions, we identified several factors to determine whether service in state positions would unconstitutionally overlap with another state position.¹⁸ Similarly, we have relied on Federal law to determine whether a Federal position constitutes a Federal “office.” In our 1994 Opinion, we held that the National Railroad Passenger Corporation (Amtrak) Board of Directors does not constitute a Federal office. The authorizing statute expressly states that Amtrak is not “an agency, instrumentality, authority, entity, or establishment of the United States Government.”¹⁹ Rather, as the United States Supreme Court held, Amtrak is a “nongovernmental corporation.”²⁰

In Biggs v. Corley, we identified five factors indicating that a public employment/service is a public “office:” 1) the exercise of some portion of the State's (or other government entity's) sovereign power;²¹ 2) tenure in office; 3) Fees and emoluments; 4) oaths in office; and 5) the powers and duties of position.²² The list is non-exclusive, and is a guideline for judicial analysis.²³ Both sides agree that factors two through five are present, and that the determination of whether the position requires the exercise of sovereign power is determinative in this case.

Nevertheless, we continue our past practice of analyzing the status of Federal positions under Federal law. This practice appropriately defers to the United States, when determining which positions can and will exercise Federal sovereign power. Congress and the United States Supreme Court are best positioned to empower and delimit Federal sovereignty and employment. Likewise, we would expect similar deference, and rely on our opinions and the General Assembly's official actions regarding Delaware state employees' duties and authority.

The United States Supreme Court has described positions in the Federal Government in terms of (1) principal and (2) inferior offices, which exercise Federal sovereignty, and (3) employment, which does not exercise Federal sovereignty.²⁴ The President nominates, and the Senate provides advice and consent, when filling a principal office.²⁵ Department heads may appoint, and must supervise, inferior offices.²⁶

The President did not nominate, and the Senate will not provide advice and consent to confirm you, before you join the Governing Board. The Education Secretary appointed you to the Governing Board, but cannot supervise the Governing Board.²⁷ The Governing Board, therefore, falls outside of the United States Supreme Court's description of a principal or inferior office. Governing Board positions would therefore constitute mere “employment” within the Federal government.

Turning to the Federal Advisory Committee Act, we find that the Governing Board meets the definition of an “advisory committee.”²⁸ Under FACA, an “advisory committee” is any “committee, board, commission, council, conference, panel, task force, or other similar group, ․ which is ․ utilized by one or more agencies, in the interest of obtaining advice or recommendations.”²⁹ Congress requires and limits the Governing Board to advise the Statistics Commissioner on executing the National Assessment. We agree with the Ohio Supreme Court's pronouncement that a state commission created to “find[ ] facts, assist[ ] in the formulation of plans and the making of recommendations ․ cannot be said to constitute the exercise of sovereign powers.”³⁰ As an advisory committee, the Governing Board does not-and statutorily cannot-exercise Federal sovereign power. Therefore, your acceptance of the appointment to the National Assessment Governing Board will not operate as a resignation of your service in the Office of Governor of the State of Delaware.

The foregoing represents the Justices' unanimous response to your question in the affirmative.

Respectfully submitted

Myron T. Steele

Chief Justice Myron T. Steele

Randy J. Holland

Justice Randy J. Holland

Carolyn Berger

Justice Carolyn Berger

Jack B. Jacobs

Justice Jack B. Jacobs

Henry duPont Ridgely

Justice Henry duPont Ridgely

FOOTNOTES

15.  In re: Opinion of the Justices, 647 A.2d 1103, 1108 (Del.1994).

16.  Id. at 1105.

17.  See 1994 Opinion, 647 A.2d at 1107 (discussing Delaware's concern with conflict between authority under the 1792 Delaware Constitution and the 1787 United States Constitution).

18.  See, e.g. Biggs, 172 A. at 419 (holding that a Fish and Game Commissioner position constituted an office); 1998 Opinion, 722 A.2d at 311 (holding that a State Trooper position constituted an office); In re Opinion of the Justices, 672 A.2d 4, 7 (Del.1995) (citing In re Opinion of the Justices, 245 A.2d 172, 174 n. 2 (Del.1968)) (holding that board or commission positions appointed pursuant to 23 or 24 Del. C. constituted offices).

19.  45 USC § 541.

20.  National RR Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 470 (1985). Counsel for the affirmative note that the Justices looked to Federal statutes to determine whether membership on Amtrak's board constituted an “office.” As stated above, Amtrak is a private, for-profit company and the Federal statute at issue specifically provided that Amtrak is not “an agency, instrumentality, authority, or entity, or establishment of the United States Government.” Accordingly, the facts of this case are distinguishable.

21.  Among the factors, this one is the most important, and must be present in an “office.” In re: Request of the governor for an Advisory Opinion, 722 A.2d 307, 311 (Del.1998) (“1998 Opinion ”).

22.  Biggs v. Corley, 172 A. 415, 419 (Del.1934); see also 1998 Opinion, 722 A.2d at 311.

23.  1998 Opinion, 722 A.2d at 311.

24.  Morrison v. Olson, 487 U.S. 654, 671 (1988) (discussing the Appointments Clause, U.S. Const. art. II, s.2, cl. 2).

25.  Id.

26.  Edmund v. U.S., 520 U.S. 651, 663 (1997) (stating that “ “inferior officers” are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate”).

27.  20 USC § 9621(f)(1).

28.  5 USC app. (2001).

29.  5 USC app. 3(2)(c) (2001).

30.  State ex. rel. Herbert v. Ferguson, 52 N.E.2d 980, 983 (Ohio 1944).