Hammond v. North Dakota State Personnel Bd.

• Decision Date: 04 April 1983
• Docket Number: No. 10341,10341
• Citation: 332 N.W.2d 244
• Parties: Howard HAMMOND, Plaintiff and Appellant, v. NORTH DAKOTA STATE PERSONNEL BOARD, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 244

332 N.W.2d 244

Howard HAMMOND, Plaintiff and Appellant, v. NORTH DAKOTA STATE PERSONNEL BOARD, Defendant and Appellee.

Civ. No. 10341.

Supreme Court of North Dakota.

April 4, 1983.

Zuger & Bucklin, Bismarck, for plaintiff and appellant; argued by James S. Hill, Bismarck.

Kathryn L. Dietz and Marilyn Foss (argued), Asst. Attys. Gen., Bismarck, for defendant and appellee.

ERICKSTAD, Chief Justice.

This is an appeal by Howard Hammond from a judgment of the District Court of Burleigh County, dated October 12, 1982, by which the court dismissed Hammond's administrative appeal, under Chapter 28-32, N.D.C.C., for lack of subject matter jurisdiction. We reverse and remand to the district court for proceedings on the merits of Hammond's administrative appeal.

On March 31, 1982, Charlene Seifert, Director of the State Laboratories Department, terminated Hammond's employment as the department's Chief Chemist. At the time of his termination, Hammond was a classified employee of the State of North Dakota. Upon being terminated, Hammond completed an "Employee Grievance Form" provided by the State of North Dakota and followed various administrative steps culminating in a hearing and determination on the matter by the North Dakota State Personnel Board. On May 26, 1982, the Board entered an order sustaining the termination of Hammond's employment. Hammond appealed the Board's order to the district court, under Chapter 28-32, N.D.C.C. On motion by the Board, the district court dismissed Hammond's appeal for lack of subject matter jurisdiction. The district court's dismissal of Hammond's appeal on jurisdictional grounds was based upon the court's conclusion that the State Personnel Board did not have authority to confirm or deny terminations of employment from non-merit state agencies and that the Board's order, having no legal significance, was not a proper subject matter for appeal to the district court.

Hammond's appeal from the district court requires this Court to resolve the following two issues:

(1) Whether or not the State Personnel Board is an agency whose decisions are appealable under Chapter 28-32, N.D.C.C.; and

(2) Whether or not the State Personnel Board has authority to review dismissals of classified state employees.

In determining that the district court erred in dismissing Hammond's administrative appeal on jurisdictional grounds, we have made the following conclusions, the basis for which we will hereinafter discuss in detail:

(1) The State Personnel Board is not an office or division of the Office of Management and Budget and is not, therefore, exempt under Subsection 28-32-01(1)(a), N.D.C.C., from the provisions of the Administrative Agencies Practice Act, Chapter 28-32, N.D.C.C.

(2) The State Personnel Board is an administrative agency as defined by Subsection 28-32-01(1), N.D.C.C., whose final orders and decisions are appealable to the district court under Section 28-32-15, N.D.C.C.

(3) The State Personnel Board has authority to review dismissals of classified state employees.

Subsection 28-32-01(1), N.D.C.C., which defines the term "administrative agency", provides in part relevant to this appeal:

"28-32-01. Definitions. In this chapter, unless the context or subject matter otherwise provides:

1. 'Administrative agency' or 'agency' means each board, bureau, commission, department, or other administrative unit of the executive branch of state government, ... The term administrative agency does not include:

a. The office of management and budget except with respect to rules relating to the central personnel system as authorized under section 54-44.3-07 and rules relating to state purchasing practices as required under section 54-44.4-04."

The Board asserts that it is a division of the Office of Management and Budget which is excluded as an administrative agency under Subsection 28-32-01(1)(a), N.D.C.C., except with respect to certain rule-making functions. We disagree with the Board's assertion that it is a division of the Office of Management and Budget. Upon examining and comparing the statutory provisions which create the Office of Management and Budget and various divisions therein with the provision which creates the State Personnel Board, we conclude that the Board is an independent entity which is not an office or division of the Office of Management and Budget.

Section 54-44-02, N.D.C.C., establishes the Office of Management and Budget:

"54-44-02. State office of management and budget. There shall be an office of management and budget vested with the duties, powers, and responsibilities necessary to supervise and administer the fiscal transactions of the various state departments, agencies, boards, and commissions."

The following statutory sections create various offices or divisions within the Office of Management and Budget:

"54-44.1-02. Office of the budget--Director--Employees--Powers. The office of budget is hereby established in the office of management and budget, for the purpose of promoting economy and efficiency in the fiscal management of the state government. The director of the office of management and budget shall be ex officio director of the budget...." [Emphasis added.]

"54-44.2-01. Office of central data processing--Creation. The office of central data processing is hereby established in the office of management and budget. The director of the office of management and budget shall appoint a director of central data processing...." [Emphasis added.]

"54-44.3-11. Central personnel division--Director--Appointment--Removal. There is hereby created a central personnel division within the office of management and budget under the supervision and control of a director who is responsible for the performance and exercise of the duties, functions, and powers imposed upon the division...." [Emphasis added.]

The foregoing provisions demonstrate that when the Legislature has intended to create an office or division within the Office of Management and Budget it has done so with express language to that effect.

Section 54-44.3-03, N.D.C.C., creating the State Personnel Board, does not make the Board a division of or place the Board within the Office of Management and Budget:

"54-44.3-03. State personnel board--Composition--Terms--Vacancies--Qualifications.

1. Effective July 1, 1975, there is hereby created a five-member state personnel board. The board shall be composed of a constitutionally elected official, who shall be the chairman of the board; a member appointed by the board of higher education; one member appointed by the governor; and two members elected by employees classified under sections 54-44.3-19 and 54-44.3-20...."

Although the Legislature has expressly created various offices or divisions within the Office of Management and Budget, Section 54-44.3-03, N.D.C.C., which creates the State Personnel Board, does not make it an office or division within the Office of Management and Budget. Although the Central Personnel Division was created as a division of the Office of Management and Budget, various legislative provisions demonstrate that the State Personnel Board is separate and distinct from the Central Personnel Division. See, Section 54-42-01, N.D.C.C.; Section 54-44.3-09, N.D.C.C.; Section 54-44.3-07, N.D.C.C. Consequently, we conclude that the State Personnel Board is an administrative agency as that term is defined under Subsection 28-32-01(1), N.D.C.C., which is not excluded as an administrative agency under Subsection 28-32-01(1)(a), N.D.C.C.

The Board asserts in the alternative that if it is an administrative agency under Chapter 28-32, N.D.C.C., its decisions are not reviewable by the courts under that chapter because there is no statute making its decisions reviewable in the courts of this state. We conclude that Section 28-32-15, N.D.C.C., when interpreted together with the definition of administrative agency under Subsection 28-32-01(1), N.D.C.C., as amended in 1981 by the 47th Legislative Assembly, authorizes an appeal from the State Personnel Board to the district court from its "final orders or decisions and orders or decisions substantially affecting the rights of parties."

Prior to the 1981 amendment, the definition of administrative agency under Subsection 28-32-01(1), N.D.C.C., provided:

"28-32-01. Definitions. --In this chapter, unless the context or subject matter otherwise provides:

1. 'Administrative agency' or 'the agency' shall include any officer, board, commission, bureau, department, or tribunal other than a court, having state-wide jurisdiction and authority to make any order, finding, determination, award, or assessment which has the force and effect of law and which by statute is subject to review in the courts of this state; ..." [Emphasis added.]

We construed that provision to mean that an entity did not constitute an administrative agency under Chapter 28-32, N.D.C.C., from which there was a right of appeal under that chapter unless a right of review was expressly granted by statutory provisions other than those located within Chapter 28-32, N.D.C.C. Knoefler Honey Farms v. Just, 270 N.W.2d 354 (N.D.1978); Dakota National Insurance Company v. Commissioner of Insurance, 79 N.D. 97, 54 N.W.2d 745 (N.D.1952). In 1981, the Legislature amended Subsection 28-32-01(1), N.D.C.C., to exclude from the definition of administrative agency the requirement "which by statute is subject to review in the courts of this state." The primary purpose of statutory construction is to ascertain the intent of the Legislature. Morton County v. Henke, 308 N.W.2d 372 (N.D.1981). Any amendment or repeal of any part of a statute must be considered in determining the true intent and objective of the Legislature. State v. Mees, 272 N.W.2d 61 (N.D.1978).

The bill amending Subsection 28-32-01(1), N.D.C.C., was introduced as a result of an interim study conducted by the Administrative Rules Committee whose written report provides...