[ Previous Page]  [ Home Page ]

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)



Opinion No. 5736

July 10, 1980


Demotion or dismissal of employees in the classified state service


Const 1963, art 11, Sec. 5


Authority to enact laws relating to employees in the classified state service

The Legislature may not enact legislation regulating the conditions of employment of employees in the classified state service and providing remedies for such employees that may be demoted or dismissed.

The Honorable James A. Barcia

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the constitutionality of two bills pending before the House of Representatives, HB 5088 and 5089. Both bills would prohibit discipline by employers against employees who report violations of the law, under specified circumstances. Both bills would also create a cause of action in the circuit courts of the State, provide for various forms of judicial relief, and impose civil fines against the employer. You ask whether either of these bills if enacted could constitutionally apply to State employees. House Substitutes were approved for each bill and HB 5088 and 5089, as substituted, were passed by the House of Representatives on April 30, 1980. 1980 House Journal, No 1980, pp 1283-1284.

Const 1963, art 11, Sec. 5 establishes the Civil Service Commission and enumerates its powers and responsibilities:

'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, approve or disapprove disbursements for all personal services, 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.'

Const 1963, art 4, Sec. 48 provides:

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

The effect of the two above-quoted constitutional provisions on legislation affecting the classified state service has been considered by the Michigan appellate courts in a number of cases. In Viculin v Department of Civil Service, 386 Mich 375; 192 NW2d 472 (1971), the Michigan Supreme Court held that the Administrative Procedures Act of 1969; MCLA 24.201 et seq; MSA 3.560(101) et seq, is inapplicable as to the method and scope for judicial review of the final decision of the Civil Service Commission dismissing an employee in the classified state service. The Court stated:

'. . . We hold that neither the provisions for administrative or judicial review of the administrative procedures act were applicable to these proceedings.

'The Civil Service Commission is a constitutional body possessing plenary power and may determine, consistent with due process, the procedures by which a state civil service employee may review his grievance. Const 1963, art 11, Sec. 5; Groehn v Corporation & Securities Commission (1957), 350 Mich 250, 259; Plec v Liquor Control Commission (1948), 322 Mich 691, 694; Wolski v Unemployment Compensation Commission (1946), 315 Mich 181, 187. The legislature is consequently without power to regulate the internal procedures of the Civil Service Commission and this fact is recognized in Const 1963, art 4, Sec. 48:' [Emphasis added.]

See, also Hardy v Civil Service Commission, 392 Mich 1; 219 NW2d 61 (1974).

Similarly, in Welfare Employees Union v Civil Service Commission, 28 Mich App 343; 184 NW2d 247 (1970); lv app den, 384 Mich 824 (1971), the Court of Appeals held that the Public Employees Relation Act of 1965, MCLA 423.201 et seq; MSA 17.455 et seq, is inapplicable to the Civil Service Commission and employees in the classified service. That Court stated:

'[The] legislature is constitutionally precluded from enacting laws providing for the resolution of disputes concerning public employees in the classified service. Const 1963, art 4, Sec. 48. 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.

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. (Emphasis supplied.)' 28 Mich App 343, 351-352

Furthermore, OAG, 1975-1976, No 5115, p 720 (December 16, 1976), concluded that the overtime and minimum wage provisions of 1964 PA 154; MCLA 408.381 et seq; MSA 17.255(1) et seq, do not apply to employees in the classified service because of Const 1967, art 11, Sec. 5, and art 4, Sec. 48.

The proposed bills, in so far as they pertain to employees in the classified state service, would violate Const 1963, art 11, Sec. 5. The Legislature is without authority to regulate conditions of employment of employees in the classified state service. It has no authority to regulate dismissals and discipline within the classified state service and to enable classified employees to file specified original actions in court in derogation of the grievance procedure established by the Civil Service Commission. Rule 33.

However, it must be noted that the Rules of the Civil Service Commission (May, 1980), adopted pursuant to the Commission's constitutional mandate to regulate conditions of employment, effectively safeguard the employment status of classified state employees who bring to public attention improper or unlawful conduct. Rule 1.5a, addressing conflict of interest, and which provides that employees may not procure pecuniary advantage through confidential information, also states that

'. . . this provision shall not prevent an employee from divulging or releasing confidential information regarding violations of rules, regulations or applicable law. . . .'

Rule 27.2, providing the conditions under which demotions may be made, does not authorize demotion based upon an employee's reporting to proper authorities improper or unlawful conduct, nor does Rule 29.1, prescribing reasons for layoff. Rule 32.1, which sets forth the causes for dismissal or suspension, does not authorize such action for reporting improper or unlawful conduct. In addition, the merit principles of the Commission, which govern the administration of all personnel actions in the State classified civil service, provide in merit principle 5 that employees:

'. . . should be protected from reprisal for the lawful disclosure of the violation of law, rules or regulation or mismanagement or abuse of authority.'

The Rules and merit principle 5 of the Commission implement the constitutional command to regulate conditions of employment, and consistent with due process (Viculin v Secretary of State, supra) preclude retailatory action or reprisal against an employee who lawfully reports violation of law, rules, or regulations.

It is, therefore, my opinion, that House Bill 5088 and 5089, to the extent that they purport to apply to employees within the classified state service, violate Const 1963, art 11, Sec. 5.

Frank J. Kelley

Attorney General

[ Previous Page]  [ Home Page ]