Basinas v. State, 79-1552

• Decision Date: 01 December 1981
• Docket Number: No. 79-1552,79-1552
• Citation: 312 N.W.2d 483,104 Wis.2d 539
• Parties: Andrew W. BASINAS, Appellant-Petitioner, v. STATE of Wisconsin (Personnel Commission) and Department of Health and SocialServices, Respondents.
• Court: Wisconsin Supreme Court

Page 483

312 N.W.2d 483

104 Wis.2d 539

Andrew W. BASINAS, Appellant-Petitioner, v. STATE of Wisconsin (Personnel Commission) and Department of Health and SocialServices, Respondents.

No. 79-1552.

Supreme Court of Wisconsin.

Argued Oct. 5, 1981.

Decided Dec. 1, 1981.

Richard V. Graylow, Madison (argued), for appellant-petitioner; Lawton & Cates, Madison, on brief.

Robert J. Vergeront, Asst. Atty. Gen. (argued), for respondents; Bronson C. La Follette, Atty. Gen., and George B. Schwahn, Asst. Atty. Gen., on brief.

DAY, Justice.

The issue in this case is whether the State Personnel Commission (commission) has jurisdiction under sec. 230.44(1)(c), Stats. 1977, and PERS 30.10, Wis.Adm.Code (1975), over an appeal by a state of Wisconsin career executive employee from a reassignment to a job in a lower pay range when the appeal alleged that the reassignment was for "disciplinary purposes" and constituted an "improper and unreasonable exercise" of the appointing authority's discretion. We hold that the commission does have jurisdiction and reverse and remand the case to the commission for a hearing on the merits of the appeal.

Petitioner Basinas is a classified state employee who is a member of the career executive program. Effective June 5, 1977, he was reassigned from his position as director, bureau of institutions, division of corrections, department of health and social services, to the position of superintendent of Oak Hill correctional institution, which was one pay range lower than his former job, and was one which he supervised in his former job as director of bureau of institutions. While the reassignment did not involve a pay cut, it had a lower pay maximum than did Basinas's former job, limiting his potential salary advancement.

Basinas appealed this reassignment to the State Personnel Board (board) on June 9, 1977. In a decision dated June 16, 1978, the board ordered him reinstated because the letter reassigning him to Oak Hill had not set forth the reasons for the reassignment, as required by sec. PERS 30.07(2), Wis.Adm.Code (1975). (All administrative code references will be to the 1975 rules, unless otherwise noted.) Following that decision, Basinas was reinstated as director of bureau of institutions by a letter dated July 12, 1978, but was simultaneously again reassigned to Oak Hill. The letter also informed Basinas of the reasons for the reassignment.

Effective February 16, 1978, the functions of the board were split between a reconstituted board and a new commission. ¹ Basinas appealed his second reassignment to the new commission by letter dated August 10, 1978. The letter read, in pertinent part:

" 'This letter constitutes my formal appeal and challenge to the actions taken by Allyn Sielaff, Administrator of the Division of Corrections, Department of Health and Social Services, as described in his letter of July 12, 1978 (see attachment). His decision to reinstate me to my former position of Director of the Bureau of Institutions, and simultaneously re-effectuate my reassignment to the position of Superintendent 2 at Oakhill Correctional Institution, I believe, is in violation of and contrary to the recent order of the State Personnel Board and is an unreasonable and improper exercise of the appointing authority's discretion and, in fact, was taken for disciplinary reasons rather than to utilize my abilities in the best interests of the Division. In addition, this action is illegal for a host of other reasons.' "

The commission dismissed the appeal, holding that it did not have subject matter jurisdiction to hear it. Basinas appealed this decision to the Dane county circuit court, which upheld the commission's determination that it lacked jurisdiction over the appeal. The court of appeals upheld the circuit court decision. ²

The commission's jurisdiction is set forth in secs. 230.44 and 230.45, Stats. 1977. Basinas argues that the commission has jurisdiction over his appeal by virtue of secs. 230.44(1)(c) and 230.45(1)(a) Stats., which read:

"230.44 Appeal procedures. (1) Appealable Actions and Steps.... (c) Demotion, layoff, suspension or discharge. If an employe has permanent status in class, the employe may appeal a demotion, layoff, suspension, discharge or reduction in pay to the commission, if the appeal alleges that the decision was not based on just cause."

"230.45 Powers and duties of personnel commission. (1) The commission shall:

"(a) Conduct hearings on appeals under s. 230.44."

If Basinas were not a participant in the career executive program, there would be no question regarding the commission's jurisdiction over his appeal, since movement to a position offering a lower maximum pay scale is defined as a demotion pursuant to sec. PERS 17.01, Wis.Adm.Code (1976). ³ However, participants in the career executive program have different rights and benefits than other state employees. One such difference is the right to appeal an adverse job action to the commission.

The career executive program was provided for in sec 16.19, Stats. 1975. That section authorized the director of the bureau of personnel, department of administration (director), to develop rules governing such a program. ⁴

Pursuant to this authority, the director promulgated ch. PERS 30, Wis.Adm.Code (1975), to govern the career executive program. ⁵ Secs. PERS 30.07 and 30.10, pertain to reassignment of career executive employees and appeal rights of reassigned employees.

"PERS 30.07 Career executive reassignment. (1) Career executive reassignment is the action by the appointing authority of moving a career executive employe from one position to another in the career executive program within the appointing authority's department.

"(2) When an appointing authority determines that an employe in a career executive position in his or her department can best be utilized to accomplish the department's program goals by reassignment to another career executive position for which the employe is qualified in a classification with the same, or lower pay range maximum, the appointing authority may make such reassignment provided it is reasonable and proper. All such reassignments shall be made in writing to the affected employe with the reasons stated therein."

"PERS 30.10 Career executive employe redress rights. (1) Career executive program employment grants to each employe thereunder rights and privileges of movement between positions within the program without examination and additional competition except as provided in Wis.Adm. Code section Pers 30.08 (2). Career executive reassignment and career executive voluntary movement to a position allocated to a classification assigned to a pay range having a lower, or higher pay range maximum, shall not be considered a demotion, or a promotion, respectively, and the statutory appeal rights provided thereto shall not apply.

"(2) Career executive reassignment by the appointing authority, as referred to in (1) above, is authorized without limitation, unless upon appeal by an employe with career executive status to the personnel board, the personnel board finds that the performance evaluation under Wis.Adm.Code section Pers 30.12 or other evidence offered by the appointing authority fails to demonstrate that the appointing authority's action was reasonable and proper. The employe is also entitled to an appeal when such reassignment is alleged by the employe to constitute an unreasonable and improper exercise of an appointing authority's discretion or when such reassignment is alleged by the employe to be for a reason which is prohibited by section 16.14, Wis.Stats.

"(3) An appointing authority may reassign a career executive employe for disciplinary purposes only for just cause.

"(4) Removal of an employe with career executive status from the career executive program resulting in the placement of the employe in a position allocated to a classification assigned to pay range 17 or below is defined as a demotion and is subject to an appeal therefrom as authorized by established statutory provisions.

"(5) Career executive status grants an employe the same redress rights granted employes with permanent status in class under subsection 16.05 (1) (e), Wis.Stats., for suspension without pay, discharge, layoff or reassignment for disciplinary purposes to a position within the career executive program allocated to a classification assigned to a lower pay range."

Chapter 196, Laws of 1977, transferred employment relations functions from the department of administration to a newly created department of employment relations. The director's powers and responsibilities were assumed by the administrator of the division of personnel, department of employment relations (administrator). ⁶ Sec. 16.19, Stats. 1975, was renumbered sec. 230.24(1), Stats. 1977, and the rulemaking authority thereunder was delegated to the administrator. ⁷

Construction of administrative rules is governed by the same principles that apply to construction of statutes. ⁸ Three such principles are relevant to the rules at issue here: A construction which does not render any provision superfluous is preferred; ⁹ a construction should be given which avoids conflict between different provisions; ¹⁰ and statutes should not be interpreted so as to render them unconstitutional or void. ¹¹

The lower courts determined that sec. PERS 30.10(1), Wis.Adm.Code deprived the commission of jurisdiction over Basinas's appeal because it stated that reassignment of a career executive employee did not constitute a demotion. Therefore, the commission did not have jurisdiction under sec. 230.44(1)(c), Stats., and no other portion of secs. 230.44 and 230.45 conferred jurisdiction over Basinas's appeal. Since the powers of an administrative agency are strictly construed against expansion beyond what is expressly authorized by statute, ¹² jurisdiction could not be based on sec. PERS 30.10(2) and (5), because the statutes...