Baker v. Civil Service Commission

• Decision Date: 21 June 1978
• Docket Number: No. 14071,14071
• Court: West Virginia Supreme Court
• Parties: John D. BAKER v. CIVIL SERVICE COMMISSION of West Virginia.

Page 908

245 S.E.2d 908

161 W.Va. 666

John D. BAKER v. CIVIL SERVICE COMMISSION of West Virginia.

No. 14071.

Supreme Court of Appeals of West Virginia.

June 21, 1978.

Syllabus by the Court

1. Article IV, Section 8 of the West Virginia Constitution vests in the Legislature the right to establish a Civil Service System for public employees.

2. The Legislature has the power to make changes in its public employment, including the Civil Service System, which changes result in either abolishing positions or diminishing the economic rights of civil service employees.

3. Public employment does not confer on an individual a contractual right to a position such that the Legislature cannot abolish or remove the position from civil service coverage.

4. There is a distinction between the abolishment of a civil service position and the discharge of an employee from such position. Where a classified position has been abolished, an employee ordinarily is not entitled to a procedural due process hearing.

5. The legislative right to abolish public employment positions is not without limitations. Such legislative action cannot (1) be done arbitrarily or in bad faith; (2) create an impermissible classification under the Equal Protection Clause or violate substantive due process principles of the West Virginia and Federal Constitutions; or (3) be directed at removing a public employee merely because of his membership in a political party that is not in control.

6. In determining whether a statute operates as a bill of attainder under Article III, Section 4 of the West Virginia Constitution, a functional test will be applied to determine whether the statute under challenge, viewed in terms of the type and severity of burdens imposed, can be said to further nonpunitive legislative purposes.

David M. Baker, Huntington, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., James B. Hoover, Marianne Kapinos, Asst. Attys. Gen., Charleston, for appellees.

MILLER, Justice:

John D. Baker appeals from an adverse ruling of the Civil Service Commission of West Virginia, which held it had no jurisdiction to consider his case in view of the fact that on May 6, 1977, the Legislature, by virtue of amendments to W.Va. Code, 29-6-1, et seq., removed his position from civil service coverage.

Mr. Baker was an employee in the Governor's Office of Federal-State Relations. On December 23, 1976, his position, along with a number of other positions in the Office of Federal-State Relations, was placed under civil service through an Executive Order issued by the Honorable Arch A. Moore, Jr., who was then Governor.

The authority for placing such positions under civil service by executive order was founded on W.Va. Code, 29-6-2. At the time the Executive Order was issued this statute authorized the governor, with the written consent of the Civil Service Commission and the appointing authority concerned, to add to the list of positions in the classified service.

At the 1977 Regular Session of the Legislature, a number of revisions were made to the civil service statutes, one of which precludes the governor from adding to the list of positions in the classified service during the last months of his term in office. W.Va. Code, 29-6-4. ¹

In this same section the Legislature expressly declared that any position placed in the classified service by executive order of the governor during the prohibited time period would not be entitled to the benefits of the classified service. Finally, the Legislature made this prohibition retroactive to the first day of July, 1976. ²

Following the passage of this legislation, Mr. Baker received written notice that he would be terminated as an employee of the State on July 13, 1977. He was informed his termination was a result of a legislative reorganization which abolished the Office of Federal-State Relations and created the Office of Economic and Community Development. See Chapter 85, 1977 Acts of the Legislature.

On July 23, 1977, Mr. Baker protested his dismissal by a letter to the Civil Service Commission which, by an order dated August 26, 1977, held that it was without jurisdiction to consider his case since the Legislature had removed his position from civil service coverage.

It is apparent that there are two legislative enactments which operate against the appellant's position. The first is the 1977 amendments to W.Va. Code, 29-6-2, which bars a governor from placing employees under civil service during the last months of his term of office. The second is the legislative reorganization of certain executive agencies, which had the effect of abolishing the Office of Federal-State Relations where he was employed. Chapter 85, 1977 Acts of the Legislature. If either of these legislative acts is proper, appellant's case fails.

Neither party notes that the two acts are involved and both proceed to address only the validity of the amendments to the civil service statute. Because the two legislative acts are controlling, we address both in this opinion, and because they both relate to the fundamental power of the Legislature to alter the terms of public employment or abolish positions, they flow from a common legal source.

The appellant argues that the Governor's Executive Order validly placed him under civil service and that the civil service statutory amendment removing his position from the classified system violated the doctrine of separation of powers found in Article V, Section 1 of the West Virginia Constitution, and operated to destroy the vested right he had to his position. He also urges that his right to procedural due process was violated since he was not accorded a hearing. Finally, he asserts that the amended Act is a bill of attainder or ex post facto law, and therefore in violation of Article III, Section 4 of the West Virginia Constitution. This latter proposition would be applicable to both acts.

The respondent has raised several matters in connection with the manner in which the Governor's Executive Order was promulgated and the extent of its compliance with some of the technical requirements of W.Va. Code, 29-6-1, et seq. However, these arguments are based upon facts that are not in the record and therefore we do not consider these issues on appeal. For purposes of this appeal, we have assumed that the Executive Order placing his position under the Civil Service System was valid.

This Court has in the past had occasion to discuss generally the Civil Service System and has recognized that its basic aim is to provide security of tenure to public employees who are within the system. In State ex rel. Karnes v. Dadisman, 153 W.Va. 771, 172 S.E.2d 561 (1970), the Court considered the validity of an executive order placing certain positions within the classified service and reviewed in some detail the mechanical aspects of how coverage is obtained. Our prior decisions, however, are of little value on the issues in this case, which involve the question of the power of the Legislature to enact changes in the Civil Service System that have the effect of withdrawing certain positions from coverage under the classified service.

While the cases of State v. Morton, 140 W.Va. 207, 84 S.E.2d 791 (1954), and Moore v. Strickling, 46 W.Va. 515, 33 S.E. 274 (1899), can be distinguished factually, since they did not involve the removal of civil service employees, they do suggest that obtaining a public office does not confer a property right. Both cases discuss the power of the Legislature with regard to the creation of public offices.

The term "public office" in its largest sense encompasses all types of public employment. There is, however, a distinction between a public officer whose office is created by the Constitution or by statute, as well as a distinction between a public officer and an employee. 63 Am.Jur.2d Public Officers and Employees § 11, et seq.; see State ex rel. Crosier v. Callaghan, W.Va., 236 S.E.2d 321 (1977); State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970). Both Crosier and Carson dealt with the distinction between a public officer and a public employee, and it is clear that the appellant, Mr. Baker, was a public employee.

In Morton, this Court decided that members of the West Virginia Turnpike Commission, while appointed by the governor under legislative authorization providing for a specific tenure, could be removed during their term by virtue of W.Va. Code, 6-6-4. We refused to find this Code section unconstitutional as violating the separation of powers provision of our Constitution, Article V, Section 1, or Article VIII, Section 10, which gives the governor power to remove officials he appoints for stated causes. The Court also implicitly recognized that Article IV, Section 8 of the West Virginia Constitution gives the Legislature broad powers to prescribe by general law the terms of office, powers, duties and compensation of all public officers and agents and the manner in which they shall be appointed and removed.

In Blue v. Tetrick, 69 W.Va. 742, 72 S.E. 1033 (1911), this Court held that Article IV, Section 8 of the West Virginia Constitution granted to the Legislature the right to create subordinate executive State offices other than those set out in Article VII, Section 1 of our Constitution, thereby sustaining the validity of the statute creating the office of State Tax Commissioner.

It is readily apparent under the foregoing cases that Article IV, Section 8 vests in the Legislature the right to establish a civil service system for public employees. This accords with the general rule that the creation of public offices, as well as prescribing the duties and tenure, is primarily a legislative function except as may be restricted by constitutional provisions. 63 Am.Jur.2d Public Officers and Employees § 33.

Once the primary power to create public offices and a civil service system is established in the Legislature, the appellant's argument...