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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. 5663

February 14, 1980

CIVIL SERVICE COMMISSION:

Delegation of powers to appointing authority

Delegation of powers by director to appointing authority

CONSTITUTIONAL LAW:

Const 1963, art 11, Sec. 5

Delegation of constitutional authority

The proposed Classified Executive Service plan which delegates power to an appointing authority to establish standards for performance of a person in the Classified Executive Service for the purpose of fixing increases in compensation by the appointing authority without the approval of the State Personnel Director and permits the appointing authority to fix increases in salaries of employees in the Classified Executive Service constitutes an impermissible delegation of constitutional authority in violation of Const 1963, art 11, Sec. 5.

Mr. Richard H. Ross

State Personnel Director

Department of Civil Service

Lewis Cass Building

Lansing, Michigan 48909

You have sought my opinion regarding the constitutionality of a proposal being considered by the Michigan Civil Service Commission 'to establish an Executive Service within the merit system, commonly referred to as the Classified Executive Service.'

Specifically, you have asked two questions regarding the proposed Classified Executive Service:

1. 'Does the plan for a Classified Executive Service as embodied in the new proposed rules, regulations . . . conform to the pertinent constitutional mandates of Art. XI, Sec. 5 of the Michigan Constitution of 1963?'

2. 'Is the Memorandum of Understanding binding and enforceable?'

While the proposed Classified Executive Service would be accomplished by a Civil Service Rule change, the details of that service are found in proposed 'Regulations on the Classified Service' which, if adopted along with the rule change authorizing the concept, would bring the Classified Executive Service into existence.

Briefly, these proposed regulations provide that:

--The Classified Executive Service would be limited to 'higher level management positions that significantly impact on the operating policies of the various state agencies.'

--Its purpose is to 'permit greater flexibility with assignment of persons to executive positions,' and

--Its principal features are 'limited term appointments, competitive examinations to select the best qualified candidates and modified appeal rights. Changes in compensation and continued occupancy of the positions are based on the work performance of the incumbent measured against standards established by the appointing authority.'

Article 11, Sec. 5 of the Michigan Constitution of 1963, after defining the 'classified state civil service' as all positions in the state service aside from those specifically excepted such as elected officials, heads of principal departments, members of boards and commissions, court and legislative employees, and certain others, as well as those permitted to be exempted, goes on to provide in pertinent part:

'The administration of the commission's powers shall be vested in a state personnel director . . .'

'The commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions . . . 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, and regulate all conditions of employment in the classified service.'

'No person shall be appointed to or promoted in the classified service who has not been certified by the commission as qualified for such appointment or promotion. No appointments, promotions, demotions or removals in the classified service shall be made for religious, racial or partisan considerations.' (Emphasis supplied).

OAG, 1965-1966, No 4484, p 152, 155 (Oct. 13, 1965), summarizes the Civil Service Commission's authority and responsibility as follows:

'The power to classify all positions in the classified state civil service is reposed in the State Civil Service Commission by Article XI, Section 5, and the people have required that such classification be made according to respective duties and responsibilities. In addition, the Commission is authorized to fix rates of compensation for all positions. Further, the people have provided that no person shall be appointed to or promoted in the classified service who has not been certified by the Commission as qualified for such appointment or promotion. . . .'

The Michigan Supreme Court has, in several cases discussed the nature of the personnel system the people created when they constitutionally mandated a civil service employment system. In a 1970 case, the Court of Appeals summarized those Supreme Court decisions saying:

'. . . The constitutional supremacy of the Michigan Civil Service Commission with respect to state employees in the classified civil service has been consistently recognized by the Michigan Supreme Court. Reed v Civil Service Commission (1942), 301 Mich 137; Civil Service Commission v Auditor General (1942), 302 Mich 673; Plec v Liquor Control Commission, supra.

'. . . The commission controls all conditions of employment and is vested with plenary powers in its sphere of authority. Robinson v Department of State (1969), 20 Mich App 231. Only the Civil Service Commission has the power to provide for grievance procedures because it alone has the power to 'regulate all conditions of employment' in the state classified civil services. Const 1963, art 11, Sec. 5.' Welfare Employees Union v Civil Service Commission, 28 Mich App 343, 351, 352; 184 NW2d 247 (1970).

A year later in Viculin v Department of Civil Service, 386 Mich 375; 192 NW2d 249 (1971), the Michigan Supreme Court held:

'The Michigan Civil Service Commission has plenary and absolute powers in its field.' 386 Mich 375, 398

In 1975, the Michigan Court of Appeals considered a claim that 'the Michigan Civil Service Commission did not have the authority to suspend its employee organizations recognition regulations and hold all new applications for . . . recognition in abeyance pending study of the entire subject matter.' The Court of Appeals concluded that the Civil Service Commission could suspend its regulations as to recognition of employee organizations. The court held:

'The Michigan Civil Service Commission is an administrative agency existing under the Constitution; Const 1963, art 11, Sec. 5:

"The commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, . . . determine by competitive examination and performances 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, and regulate all conditions of employment in the classified service.'

'The Civil Service Commission possesses plenary power and may determine, consistent with due process, the procedures by which matters are regulated relative to employment in the state classified service. Plec v Liquor Control Commission, 322 Mich 691; 34 NW2d 524 (1948); Groehn v Corporation and Securities Commission, 350 Mich 250; 86 NW2d 291 (1957); Viculin v Department of Civil Service, 386 Mich 375; 192 NW2d 449 (1971).

"The above ruling obviously arises from and is sound because of the fact that the civil service commission by the above mentioned constitutional amendment is vested with plenary powers in its sphere of authority.' Plec, supra, 694.

'See also Welfare Employees Union v Civil Service Commission, 28 Mich App 343, 351-352; 184 NW2d 247, 251 (1970), where this Court held that:

"The Michigan constitution of 1963 clearly gives the Civil Service Commission supreme power over its employees. The constitutional supremacy of the Michigan Civil Service Commission with respect to state employees in the classified civil service has been consistently recognized by the Michigan Supreme Court.' International Union v Civil Service, 57 Mich App 526, 527, 530; 116 NW2d 550 (1975).

In addition, it should be noted that:

'. . . rules and regulations must be consistent with the other expressed powers vested in the commission and within the limitations expressed in the amendment itself. If rules and regulations are contrary to any provision of the amendment, they cannot stand merely by virtue of the authority conferred upon the commission to make rules and regulations.' Reed v Civil Service Commission, supra.

While Michigan's appellate courts have not had occasion to review the aforementioned provision of Const 1963, art 11, Sec. 5 that 'the administration of the commission's powers shall be vested in a state personnel director . . .' the term 'administration' has been defined by our Supreme Court which, quoting Black's Law Dictionary definition of the word, said:

"The administration of government means the practical management and direction of the executive department, or of the public machinery or functions, or of the operations of the various organs of the sovereign. The term 'administration' is also conventionally applied to the whole class of public functionaries, or those in charge of the management of the executive department." People v Salisbury, 134 Mich 537, 550; 96 NW 936 (1903).

Courts in other states have also defined 'administration' and those definitions are summarized in Corpus Juris Secundum as follows:

'As generally understood 'administration' means management, direction or supervision . . .

'The term is very comprehensive, and includes the administration of . . . government . . .

'Employed with reference to public matters, the term may refer to administration of public affairs through and under the regulations prescribed by law, or broadly to the entire management of a government agency . . .' 2 CJS Administration p 78

The Minnesota Supreme court has noted that the terms 'direct' and 'administer' are synonymous:

'. . . Both mean to manage, control and conduct the affairs or business of the governmental agency to which they relate . . .' Christgau v Fine, 223 Minn 452, 462; 27 NW 2d 193, 198 (1947).

It is a basic principle of law that duties, responsibility or power given by constitution or statute to one public body or officer cannot be delegated to another public body or officer.

'A power definitely assigned by the constitution to one department cannot be surrendered or delegated by that department or vested by statute in another department or agency.' 16 CJS Constitutional Law Sec. 105, p 489.

Since neither the Civil Service Commission nor the State Personnel Director may surrender or delegate a power specifically assigned by the constitution, it is necessary to appraise the proposed Classified Executive Service plan in the light of the constitutionally mandated responsibilities of both the Commission and the Director. The proposed plan, by way of example, includes provisions in the area of compensation and performance for purposes of fixing compensation which clearly surrender to others responsibilities the people have vested in the Commission and its Director, making review of other provisions of the plan unnecessary.

For example, section 4 of the proposed regulations deals with compensation. Subparagraph 4-04 gives the appointing authority the responsibility to 'fix rates of compensation for all classes of positions' for purposes of fixing increases in compensation by the appointing authority without the approval of the Director. Const 1963, art 11, Sec. 5, on the other hand, mandates that it is the Civil Service Commission's responsibility to 'classify all positions in the classified service according to their respective duties and responsibilities.' While the powers of the appointing authority to evaluate the performance of an employee in the classified service is unquestioned, to permit standards of performance to be set by the appointing authority for the purpose of fixing increases in compensation violates the constitutional authority of the Civil Service Commission.

Sub-paragraph 4-03 provides that employees in classified service who become part of the Classified Executive Service will not automatically receive general salary increases ordered by the Commission. Instead, the salaries of classified employees participating in the proposed Classified Executive Service will be set solely by agreement between the individual employee and the appointing authority.

Const 1963, art 11, Sec. 5 provides that the Commission 'shall fix rates of compensation for all classes or positions.' Thus the Commission may not leave the rate of compensation for any position or class in the classified service, such as the proposed Classified Executive Service, to negotiation and agreement between an employee and the employee's appointing authority.

In the areas discussed above, it is the State Personnel Director who has been mandated by the people to carry out the administrative aspects of these responsibilities. Thus, the plan as presently proposed is invalid for two reasons: first, it constitutes an improper delegation by the Civil Service Commission of its constitutionally mandated responsibilities; and, second, it constitutes an unconstitutional shift of administrative authority to carry out the responsibilities of the Civil Service Commission from the State Personnel Director to the various appointing authorities.

As discussed above, the Civil Service Commission has been given 'plenary power' over employees in the classified service; powers which it must exercise. This authority must be administered by the State Personnel Director. Neither the Commission nor the Director may delegate their respective constitutionally imposed responsibilities to others.

The concept of a Classified Executive Service may well have merit, but the proposed plan does not conform to the Civil Service system which the people have established in our Constitution. Therefore, it is my opinion that the Classified Executive Service plan proposed is unconstitutional.

Frank J. Kelley

Attorney General

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