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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. 6003

October 29, 1981

CIVIL SERVICE:

Authority of Civil Service Commission to provide by rule for the subpoena of persons not in the classified state civil service to appear as witnesses at hearings

Authority of Civil Service Commission to subpoena classified state civil service employees to appear at hearings

The Civil Service Commission is empowered to enact a rule providing for the subpoena of persons not in the state classified service to appear as witnesses in hearings before the commission, but it may not enforce the subpoenas.

The Civil Service Commission may, as a condition of employment, require classified state civil service employees to appear, without loss of pay, as witnesses in hearings before the commission.

Dr. Gerald Miller

Director

Department of Management and Budget

P.O. Box 30026

Lansing, Michigan

You have requested my opinion on the following questions:

(1) Do the provisions of the 1963 Constitution, Article XI, Sec. 5, provide sufficient legal basis to empower the Michigan Civil Service Commission to enact a rule or regulation conferring upon itself or its staff enforceable subpoena powers directed to persons not in the state classified service?

(2) Do the provisions of Article XI, Sec. 5 authorize the Civil Service Commission to over-ride the legal authority of the heads of the principal departments to assign, direct, and control the activities of classified employees in their respective departments?

Const 1963, Art 11, Sec. 5, which established the Civil Service Commission and vests it with authority over classified employees, does not specifically authorize the Commission or its staff to issue legally enforceable subpoenaes. Instead, Const 1963, Art 11, Sec. 5, supra, contains a broad grant of authority by which

'the commission shall . . ., make rules and regulations covering all personnel transactions and regulate all conditions of employment in the classified service'

In Viculin v Department of Civil Service, 386 Mich 375, 393; 49 NW2d 473 (1971), the Court stated:

'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. . . . The legislature is consequently without power to regulate the internal procedures of the Civil Service Commission. . . .' [Citations omitted.]

Accord: Council No 11 AFSCME v Civil Service Commission, 408 Mich 385, 408; 292 NW2d 442 (1980).

Although Const 1963, art 11, Sec. 5, supra, does not expressly confer authority upon the Civil Service Commission to issue subpoenaes to compel private citizens to appear and give testimony in cases before the Commission, the grant of authority over conditions of employment of persons in the state classified civil service must include the authority to hold hearings and render decisions thereon. The testimony of witnesses, including private citizens, is vital to a just and fair exercise of this power. The Commission may provide for the subpoena of private citizens as witnesses in such hearings. Failure of the witness to appear may well frustrate the obligation of Civil Service Commission to fulfill its duties. Parties to the proceedings, in such event, may petition the circuit court for an order compelling the appearance of the witness subject to the contempt power of the court for failure to obey the order of the court. Viculin, supra.

It is my opinion in response to your first question, that Civil Service Commission may adopt a rule providing for the issuance of a subpoena directed to persons not in the classified civil service but the Commission is without enforcement authority to compel attendance.

In your second question, you inquire whether the Civil Service Commission has the power to require classified state employees to appear at a civil service hearing and offer testimony and receive administrative leave therefor.

Const 1963, art 11, Sec. 5, supra, confers upon the Civil Service Commission the power to regulate all conditions of employment in the classified service.

OAG, 1969-1970 No 4709, p 169 (September 4, 1979) discussed the allocation of power between the Civil Service Commission and the various appointing authorities to deal with conditions of employment. In OAG, No 4709, supra, it was necessary to determine the extent to which an appointing authority may enter into and execute an agreement with representatives of an employee organization:

'The role of the appointing authority is that of carrying out the executive and administrative functions pursuant to statutory or constitutional powers. Essentially it is the agency for which the employee works. Eliason v State Roads Commission (Md. 1963), 189 A2d 649, 651, and these functions of the appointing authority necessarily involve directing and controlling the employee's activities. However, in carrying out its mission, the appointing authority is subject to the power of the civil service commission to 'make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service.' (Article XI, Section 5)

'Thus, the determination of where and how the employee's activity is to be carried on is within the prerogative of the appointing authority. For example, in Carroll v. Newberry State Hospital (1968), 15 Mich. App. 18, the medical superintendent of a state hospital issued orders to classified civil service employees concerning their work assignment pursuant to this statutory authority under Section 5 of Act 151, P.A. 1923; M.C.L.A. Sec. 330.15; MSA 1969 Rev. Vol. Sec. 14.805. These orders were violated and the superintendent suspended these employees. They thereupon appealed their suspensions to the state civil service commission which affirmed the action of the superintendent and the court sustained the findings of the commission. Nevertheless, implicit in this decision is the power of the civil service commission to supersede the action of the constitutional authority 'to regulate all conditions of employment' in the classified service. Where, as in Carroll, the appointing authority issues its order concerning working conditions, these orders must be presumed to be valid and must be complied with until the commission has superseded such action in accordance with lawful procedures.' [Emphasis supplied.] [OAG, No 4709, supra, at p 172.]

Although the initial determination of conditions of employment is the responsibility of the appointing authority, OAG, No 4709, supra, noted that the Civil Service Commission has the primary power to determine the general conditions of employment so that the appointing authority has no discretion with respect to that condition. Cf. Michigan State Employees Association v Civil Service Commission, 91 Mich App 135; 283 NW2d 672, lv den 407 Mich 938 (1979).

It is within the power of the Civil Service Commission to establish the duty of a classified state employee to appear as a witness in a hearing before the Commission without loss of pay as a condition of employment pursuant to its rule-making authority under Const 1963, art 11, Sec. 5, supra.

Thus, in response to your second question, it is my opinion, therefore, that the Civil Service Commission has the authority to enact a rule requiring an employee in the state classified civil service to appear, without loss of pay, as a witness at hearing before the Civil Service Commission.

Frank J. Kelley

Attorney General

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