Kirby v. Nolte ( 1942 )

[5] I concur in the principal opinion except as to the conclusion that the director of personnel is an "officer" in the constitutional sense. With that holding I respectfully disagree and dissent. In my opinion, the director is not an officer and therefore is not subject to the restriction of Sec. 10, Art. VIII of the Constitution requiring one year's residence in this State before appointment.

The great number and variety of decisions on who is or who is not an officer of government constitute a vast wilderness. A trend is apparent, however, away from the strict construction announced in State ex rel. v. Valle, 41 Mo. 29, wherein the rule seems to have been extended to those exercising public employment as distinguished from "mere employment as a contractor or agent under some public office." The reason for a more liberal view is doubtless because state governments and municipal corporations more particularly are now performing many of the functions formerly performed by private corporations, and in which the restrictions applicable to public officers exercising governmental functions are neither necessary nor pertinent. Likewise, methods of business corporations are being more widely used in the administration of state and municipal affairs.

State ex inf. McKittrick v. Bode, 342 Mo. 162,113 S.W.2d 805, said: "It is not possible to define the words ``public office or public officer.' The cases are determined from the particular facts, including a consideration of the intention and subject matter of the enactment of the statute or the adoption of the constitutional provision. In other words, the duties to be performed, the method of performance, end to be attained, depository of the power granted, and the surrounding circumstances must be considered."

Turning now to the particular facts of this case we find that the new Article XVIII of the St. Louis Charter is intended to provide a classified civil service on merit and fitness, free from political and other considerations. This calls for certain checks and balances which lead to much detail and complexity. The article creates a civil service commission of three members to be appointed by the mayor. These must be citizens of the United States and residents of St. Louis for at least two years. They are not required to be experienced in personnel administration. Their only qualification to that end is that their past records indicate they favor the merit system.

The article then provides for a director of personnel and makes certain safeguards to insure freedom from political considerations in his appointment. The commission does not appoint the director but very actively participates in his appointment. It conducts competitive tests for this position and certifies a list of eligibles to the mayor who appoints from the top three. Nor can the commission discharge the director but it must conduct the hearing on his discharge and make recommendations to the mayor who has the final decision. I do not believe that these conditions, imposed to prevent partisanship, operate to make the director an officer rather than an employee.

The general scheme of administration of the many phases of this merit system indicates that the director, while occupying a position of responsibility, acts in a capacity subordinate to the commission.

For instance, the article requires that civil service rules be adopted by the commission to give effect to the purpose of the article. Sec. 3 (v) provides: "(v) for the [13] administration and enforcement of the provisions of this Article and all provisions of ordinances and rules adopted in pursuance thereof, by the Director, subject to the rules of the Commission and subject to appeal to and review on appeal by the Commission."

Thus, the administration by the director is subject and pursuant to the rules adopted by the commission. And of great weight in determining the question before us, is the provision that any action of the director is subject to appeal and review by the commission. His actions, therefore, are not only governed by the rules enacted by the commission but even his decisions are subject to review by the commission.

This is even more clearly brought out in Section 7, entitled: "Powers and Duties of the Commission." Section 7 (a) provides: "(a) to prescribe, and to amend from time to time as such action is deemed to be desirable, rules for the administration and enforcement of the provisions of this Article, and of any ordinance adopted in pursuance thereof, and not inconsistent therewith;"

Then Section 7 (d) provides: "(d) to consider and determine any matter involved in the administration and enforcement of this Article and the rules and ordinances adopted in accordance therewith that may be referred to it for decision by the director, or on appeal by any appointing authority, employe, or taxpayer of the City from any act of the Director or of any appointing authority. The decision of the Commission in all such matters shall be final, subject, however, to any right of action under any law of the State or of the United States;"

The article also specifies that the director is expressly subject to the command of the commission for the purpose of conducting special investigations and for making special reports.

There is a provision requiring the commission to perform the same duties with reference to the director as the director performs with reference to the positions in the classified service. There is a provision directing the commission to fix the salary of the director. These may be regarded as a legislative intention to place the position of director in the "classified service." We will discuss the effect of this intention later but we now point out that this intention must account for the director's indefinite term of employment as all those in the classified service have the same indefinite terms in accordance with the policy of the article putting tenure on a merit basis alone.

Now turning to the duties the law places on the director, even though he is made the head of the department of personnel and appoints its employees, still I find he does not exercise his duties with the independence that characterizes a public officer.

For instance, the plans for classification and compensation which he must prepare must be submitted to and accepted by the commission before they become official. Section 9 (d) provides: "(d) to prepare and recommend, for action by the Commission, rules, including a classification plan and a service rating plan, drafts of ordinances for recommendation to the Mayor and Aldermen in matters requiring such ordinances, including a compensation plan, and changes as deemed desirable from time to time in such rules, and ordinances;"

To the same effect is Section 9 (k): "(k) to devise and recommend to the Commission a compensation plan consisting of scales of pay for the several grades or classes in due relation to each other and to rates prevailing for like employment in private industry, rules for the interpretation and application of the plan, and changes in such plan and rules from time to time as deemed desirable;"

The limitations of his authority are obvious because even his recommendations must be approved by the commission.

Section 9 (m) provides: "(m) to make annual reports to the Commission for its approval and transmission to the Mayor and Aldermen on the work of the department and the administration and effect of this Article, with such recommendations for action as he may deem desirable, and such special reports as may be requested by the Commission for the Mayor. Such reports shall be public records;"

I mentioned above the legislative intention of including the director in the classified service. This would seem to exclude any intention that he was to be an officer in the constitutional sense. Moreover, the amendment provides that the department of personnel shall consist of the director, the commission and suchother employees as may needed. There can be no doubt but that the members of the commission are officers so that the use of "other employees" indicates that the director must also be regarded as an employee. While such legislative declarations are not controlling [14] we have long held in this State they are entitled some significance. [State ex rel. Pickett v. Truman,333 Mo. 1018, l.c. 1021, 64 S.W.2d 105, and cases cited.]

State ex inf. McKittrick v. Bode, supra, held that the director of conservation was not subject to the constitutional requirement as to residence. The majority opinion, in which I participated, found that the director was a public officer. Such finding was unnecessary to the decision because that opinion turned on theory since the conservation commission and the director were created by a constitutional amendment adopted subsequently to Sec. 10, Art. VIII, its provisions overrode the restrictions of the earlier section. Therefore, the conservation commission was not bound by Sec. 10, Art. VIII in carrying out its authorized powers of determining the qualifications of its director. The minority opinion in that case proceeded on the theory that the director was not a public officer and is, I believe, most pertinent here, despite the differences mentioned in the principal opinion.

Coming back to the principal opinion in this case it points out that certain positions such as the presidents of state institutions of higher learning, chief engineer of the State Highway Commission and the health supervisor of State eleemosynary institutions must be filled by experts, and to get them it is sometimes necessary to go outside the State. "The law should not be too restrictive in such matters," it declares. This is strikingly apposite here, because a person to be eligible for appointment as director of personnel "shall have had not less than 5 years' experience in personnel administration of which not less than two years shall have been in public personnel administration." This calls for qualifications which are to be found in a limited and restricted field.

An analogous situation involving the question whether the State librarian was an officer in the constitutional sense arose in Ohio. [State ex rel. Newman v. Skinner, 128 Ohio St. 325,191 N.E. 127, 93 A.L.A. 331.] The court found that such a position was not an office. It is true that the State Library Board had the power to appoint and remove the librarian, but otherwise the facts are somewhat similar. The Court said: "Its members (State Library Board) are appointed by the Governor. It is authorized and directed to make rules for the government of the state library and the organization of a library service of the state departments. . . . The librarian acts not independently, but under the direction and supervision of the State Library Board and subject to the rules and regulations established by it. The statute does not fix any term, or require an oath or the giving of a bond; nor is the salary or compensation fixed by law. . . ."

In conclusion, I adopt the closing argument of the commission: "In State ex rel. Landis v. Board of Commissioners of Butler County, 95 Ohio State, 157, 115 N.E. 919, l.c. 920, the Court says: ``to constitute a public office, . . . it is essential that certain independent public duties, a part of the sovereignty of the state, should be appointed to it by law.'

"Further explaining, the Court says: ``If specific statutory and independent duties are imposed upon an appointee in relation to the exercise of the police powers of the state, if the appointee is invested with independent power in the disposition of public property, or with power to incur financial obligations upon the part of the county or state, if he is empowered to act in those multitudinous cases involving business or political dealings between individuals and the public, wherein the latter must necessarily act through an official agency, then such functions are a part of the sovereignty of the state.'

"The foregoing language was approved and applied by this court in the case of State ex rel. Pickett v. Truman, 333 Mo. 1018,64 S.W.2d 105, l.c. 106.

"If we apply the test so laid down to the Director of Personnel, it may well be doubted whether he independently is vested with, or wields, any part of the sovereign power of the state. His position is more analogous to that of a chief clerk, whose action is subject to reversal by the Commissioners, upon any appeal taken [Section 7 (d)]. No bond and no oath of office seem to be required."

Therefore, I am of the opinion that the finding of the court below that the commission was authorized to certify for appointment as director of personnel the names of non-residents of Missouri and that such non-residents would not be disbarred from appointment for that reason should be affirmed. Hays, J., concurs.