The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5480

March 27, 1979

VETERANS:

Right to appeal dismissal under Veterans Preference Act

CIVIL SERVICE COMMISSION:

Right to appeal dismissal under Veterans Preference Act

CIVIL SERVICE COMMISSION:

Adoption of rules

CIVIL RIGHTS:

Right of veteran to appeal dismissal based upon discrimination

With respect to veterans in the state classified civil service, the Veterans Preference Act regulating dismissal procedure of veterans is superseded by the constitutional provision empowering the Civil Service Commission to make rules and regulations governing all personnel transactions.

The appeal procedure of the Civil Service Commission is the exclusive means by which a classified state employee may appeal a dismissal other than one alleging discrimination because of religion, race, color, national origin, age, sex, height, weight or marital status.

Where a classified state employee alleges that a dismissal was based upon religion, race, color, national origin, age, sex, height, weight or marital status, the procedures of the Civil Service Commission or of the Civil Rights Commission may be followed.

The Civil Service Commission has the power to adopt rules which incorporate legislative enactments in toto, in part or not at all.

The Honorable Harold J. Scott

State Senator

The Capitol

Lansing, Michigan 48901

You have requested my opinion on the following questions regarding veterans preference benefits:

1. Would a statute in effect when the 1963 Constitution was adopted regulating the dismissal procedure for public employees who are veterans necessarily be repugnant to a constitutional requirement that the Civil Service Commission regulate all conditions of employment for State Civil Servants?

2. Does the Civil Service Commission have discretion to adopt the substance of some of the statutes relating to veterans privileges in effect on the effective date of the constitution, and to ignore other such statutes (Sec. 35.401 of the Michigan Compiled Laws relative to a veterans appeal right on dismissal)?

3. Are the appeal procedures prescribed by the rules of the Civil Service Commission (Rule 33) the exclusive means by which a state employee may appeal a dismissal? If so, upon what legal basis is such a contention founded?

4. Are the appeal procedures of the Civil Service Commission the exclusive means by which a state employee may take an appeal from alleged discriminatory action in promotion, discharge or disciplinary action based upon the employee's religion, race, color, national origin, age, sex, height, weight or marital status?

Const 1963, art 11, Sec. 5, gives the Civil Service Commission the power to:

'. . . [C]lassify all positions in the classified service . . . determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, make rules and regulations covering all personnel transactions, . . . in the classified service.' (emphasis added)

The Constitution of 1963, art 11, Sec. 5, provides for a Civil Service Commission with power to determine the procedure for the hiring, employment, and discipline of employees of the classified civil service.

'The Civil Service Commission is a constitutional body possessing plenary power. . . .' Viculin v Department of Civil Service, 386 Mich 375, 393; 192 NW2d 449 (1971)

See also Groehn v Corporations and Securities Commission 350 Mich 250; 86 NW2d 291 (1957) and Plec v Liquor Control Commission, 322 Mich 691; 34 NW2d 524 (1948), which, while decided prior to the adoption of Const 1963, interpreted the similar provision of Const 1908, art 6, Sec. 22.

The Constitution further provides in art 4, Sec. 48 that:

'The legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service.' [emphasis added]

Thus, an existing statute regulating the dismissal procedure for veterans is pre-empted by the Constitution and is unenforceable as to veterans who are part of the classified civil service. The Constitution has clearly mandated that the Civil Service Commission shall determine through its rules and regulations the procedure to be followed in regard to classified state employees.

The Constitution of 1963, art 4, Sec. 49 also provides that:

'The legislature may enact laws relative to the hours and conditions of employment.'

Although the Constitution has specifically insulated classified state employees from the effect of legislation under art 4, Sec. 48, the legislature may pass legislation which will affect state employees who are not in the classified service.

The legislature is not constitutionally pre-empted from enacting legislation dealing with the dismissal procedure for state-employed veterans who are not in the classified service.

In summary, a statute seeking to regulate dismissal procedure for classified state employees would be invalid as such regulation is the exclusive prerogative of the Civil Service Commission. A statute regulating the dismissal procedure for non-classified executive branch state employees would be valid.

Your second question is whether the Civil Service Commission has discretion to adopt the substance of some legislative enactments relating to veterans while ignoring others. The Civil Service Commission has the power to:

'. . . make rules and regulations covering all personnel transactions . . .' Const 1963, art 11, Sec. 5.

The Constitution does not contain a directive that the Civil Service Commission shall adopt any legislation, nor that if it adopts a portion of an existing act it must adopt the entire act. The power is given to enact those rules and regulations the Civil Service Commission deems necessary in accord with the plenary powers conferred upon it by Const 1963, art 11, Sec. 5. The Civil Service Commission has the power to adopt rules which may incorporate legislative enactments in toto, in part or not at all.

Your third question asks whether the appeal procedure of the Civil Service Commission is the exclusive means by which a classified state employee may appeal a dismissal.

The Veterans Preference Act, 1897 PA 205; MCLA 35.401 et seq; MSA 4.1221 et seq, provides in part for an appeal procedure. This procedure is provided for the benefit of a veteran employed by the state who is to be removed, transferred or suspended. Thus, the issue is whether the appeal procedure provided in 1897 PA 205, supra, may be applied to veterans who are members of the state classified civil service.

This issue was addressed in a letter dated October 27, 1977 to Lt. Col. Forrest J. Jacob, of the Department of State Police. In this letter it was stated:

'In my opinion the statute (1897 PA 205) may not apply to state classified employees because this provision has been superseded by the provisions of the Michigan Constitution of 1963 which vests plenary power in the Civil Service Commission to review grievances of employees in the state classified civil service.' [Letter dated October 27, 1977, copy attached]

It must be concluded, therefore, that the appeal procedure of the Civil Service Commission is the exclusive means by which a classified state employee may appeal a dismissal other than one alleging discrimination.

A state employee, not a member of the classified civil service may not use the appeal procedures created by the Civil Service Commission. A veteran state employee, who is not in the classified civil service, could appeal an action taken by his employer under the Veterans Preference Act, 1897 PA 205, supra.

Your fourth question asks whether the appeal procedures of the Civil Service Commission are the exclusive means by which a state employee may take an appeal from alleged discriminatory action in promotion, discharge or disciplinary action based upon the employee's religion, race, color, national origin, age, sex, height, weight or marital status.

The Constitution of 1963, art 5, Sec. 29, provides for a Civil Rights Commission:

'. . . It shall be the duty of the commission in a manner which may be prescribed by law to investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of the civil rights guaranteed by law and by this constitution, and to secure the equal protection of such civil rights without such discrimination. . . .

'The commission shall have power, in accordance with the provisions of this constitution and of general laws governing administrative agencies, to promulgate rules and regulations for its own procedures, to hold hearings, administer oaths, through court authorization to require the attendance of witnesses and the submission of records, to take testimony, and to issue appropriate orders. . . .' (Const 1963, art 5, Sec. 29; emphasis added)

In conjunction with these constitutional provisions, the legislature has passed 1976 PA 453; MCLA 37.2202; MSA 3.548(202), which says that:

'An employer shall not:

(b) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.' (emphasis added)

Thus, the Civil Rights Commission has jurisdiction to determine matters involving discrimination based upon religion, race, color, national origin, age, sex, height, weight, or marital status.

See City of Ypsilanti v Civil Rights Commission, 55 Mich App 103; 221 NW2d 923 (1974), affirmed as to subject matter jurisdiction of the Civil Rights Commission, reversed in part of separate issue, 393 Mich 254; 224 NW2d 281 (1974).

In OAG, 1947-1948, No 0-5133 (October 23, 1946), it was determined that the procedures of the Civil Service Commission are subject to certain limitations:

'. . . Existing laws governing matters placed under the control of the civil service commission, at least to the extent that they conflict with the civil service amendment or the regulations of the commission adopted pursuant thereto, are nugatory in accordance with the will of the people, unless such laws are specifically authorized by other provisions of the Constitution.' [OAG, 1947-1948, No 0-5133, p 89 (October 23, 1946); emphasis added]

See also OAG, 1947-1948, No 316, p 296 (May 6, 1947).

Specific authorization exists for the Civil Rights Commission to investigate alleged discrimination against any person, including classified state employees. Therefore, the appeal procedures of the civil service are not the exclusive means by which a classified state employee may make an appeal based on discrimination. A classified state employee, in accord with the provisions of the Constitution of 1963, may make use of the procedures of the Civil Service Commission or, where discrimination is alleged, of the Civil Rights Commission. Further, a final decision by either of these constitutionally created units of government is subject to judicial review by the courts.

Frank J. Kelley

Attorney General