Smith v. Highway Bd.

• Decision Date: 07 October 1952
• Docket Number: No. 154,154
• Citation: 91 A.2d 805,117 Vt. 343
• Court: Vermont Supreme Court
• Parties: SMITH v. HIGHWAY BOARD et al.

Page 805

91 A.2d 805

117 Vt. 343

SMITH v. HIGHWAY BOARD et al.

No. 154.

Supreme Court of Vermont.

Oct. 7, 1952.

Bove, Billado & Dick, Rutland, for plaintiff.

Lawrence C. Jones, Rutland, for defendants

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CUSHING, JJ.

ADAMS, Justice.

This is a bill in chancery brought by the plaintiff seeking an injunction against the defendants to prevent them from terminating the employment of the plaintiff as a highway patrolman during the pendency of the proceedings and after a hearing on the merits. A temporary injunction was issued, ex parte, by the chancellor. The defendants demurred to the bill. A hearing was had on the demurrer. It was sustained and an order made dismissing the bill. The order was stayed, the temporary injunction was continued in force until further order and the cause passed to this Court before final judgment. The cause is here on the plaintiff's exceptions.

Many causes of demurrer are assigned, but we agree with the plaintiff that the question raised is a procedural question. The primary matter for our consideration is one of procedure in regard to terminating the employment of an employee under the Merit System.

The sufficiency of the bill on demurrer is to be determined by the allegations of fact contained in it. Allegations amounting to conclusions of law are not admitted by the demurrer and are to be disregarded. No fact can be considered unless it appears on the face of the bill. Hillmer v. Grondahl, 109 Vt. 388, 390, 199 A. 255, and cases cited.

The material facts alleged in the bill pertaining to the procedure in question are as follows: The plaintiff, Smith, has been an employee of the highway Department for about 31 years in the Bennington District. The defendant, Pelsue, is District Engineer in that district and by delegation of the highway board is the appointing authority in his district and Smith's immediate superior. The position of patrolman occupied by Smith is one under the state classification plan and he was approved for the position under the plan and his rights as regards tenure and removal became governed by the regulations. On August 24, 1951, Pelsue informed Smith by letter that he requested that Smith retire from service and would expect that 'you will be retired by November 15, 1951' in that on November 7 he would become 65 years old and eligible for retirement under the Vermont Retirement System. Smith asked for a hearing before the highway board and his attorney was notified by the chairman that Smith would be heard on November 16 but that Pelsue was being informed that if Smith did not care to retire on November 16, Pelsue must discharge him as of that date. Pelsue, by letter dated November 16, received by Smith on November 17, so informed him. No cause for the dismissal was given in the letter. An informal hearing was had before the highway board on November 16. Before any evidence was introduced by Smith, the board stated that the instructions to dismiss Smith on November 16 would not be changed and that the board felt that it could not grant him 'a fair and impartial hearing.' Smith appealed in writing to the Personnel Board.

On November 28, a hearing was had before that board. At that hearing the highway board and Pelsue filed a motion to dismiss the appeal. The board denied the motion. Pelsue delivered Smith a letter of that date giving 13 reasons for his dismissal and asked leave to file a copy with the board for the purpose of stating the causes for the dismissal. This letter was 'disallowed without prejudice'. The personnel board then found that, 'Pelsue, appointing authority for the highway board in the Bennington district, did not submit to the appellant in writing just cause for his dismissal from the state service and that the appellant, Thomas E. Smith, has not been separated from his position of highway patrolman as of this date.'

The next day, November 29, Pelsue notified Smith by letter that 'you are dismissed as an employee of the State Highway Department, effective December 14, 1951 for the following reasons'. Then followed 13 reasons. These were the same as set forth in the letter of November 28 which was disallowed without prejudice. The letter of November 29 was received by Smith on November 30.

The temporary injunction prohibited the defendants from terminating Smith's employment on December 14 and, by reason of the continuance of the injunction in force until further order and the passing of the cause to this Court, Smith is still employed as a highway patrolman.

Vermont has a 'Merit System' or 'State Classification Plan' for state employees together with an 'Employees Retirement System'. V.S. 47, § 513, as amended by section 1 of No. 9 of the Acts of 1949, provides:

'Classification plan, rules. Through the personnel board and personnel director, the governor shall adopt and establish a plan of classification and compensation for each position and type of employment in the state government, except positions, including those within the department of public safety, for which the salary or compensation is fixed by statute, and shall prescribe therein the necessary salary schedules, fixing a minimum and maximum for each class of employees doing the same general type of work. With the approval of the governor, the personnel board shall make such regulations and adopt such methods of qualifying employees for positions as will make the plan effective, and shall prescribe rules to provide for personnel administration which shall include rules governing appointments, promotions, demotions, transfers, separations, vacations, sick leave and hours of employment. The plan adopted for personnel administration shall be based on merit system principles and standards.'

Rules and regulations promulgated by authority of that section and within its scope must be given the force of law and we take judicial notice of them. State v. Gladstone, 112 Vt. 233, 236, 22 A.2d 490; Timmins v. Civil Service Commissioners, 276 Mass. 142, 177 N.E. 1, 75 A.L.R. 1232; 67 C.J.S., Officers, § 107, page 381, note 34; 20 Am.Jur., Evidence, § 44. The regulations here material are:

'13.1. Tenure of Employment: An employee will not be subject to removal except for cause.'

'13.5. Dismissal: The appointing authority, two weeks after written notice stating specific reasons therefor, may dismiss an employee for cause.'

'16. Appeals: A person shall have the right of appeal to the Board from such actions as examination rejection or rating, removal of name from register, service rating, transfer, demotion, suspension, separation, or other cause. Such appeal shall be made to the Director in writing, stating the reason for such appeal, not later than thirty days after the effective date of the stated reason. The Director, on receipt of the appeal, shall arrange for a hearing before the board. A copy of the appeal shall be furnished to the Personnel Officer of the agency reasonably in advance of the hearing. Both parties shall have the right to present witnesses and give evidence before the board.'

The broad question here is: What is the procedure that is available to an employee under the merit system who desires to question and contest an attempt to terminate his service for an alleged cause?

The purpose and effect of the merit system is to take from the appointing officer the right of arbitrary removal, either directly or indirectly, of an appointee which he otherwise would have. Donaldson v. Sisk, 57 Ariz. 318, 113 P.2d 860; Burge v. Oklahoma Employment Security Commission, 200 Okl. 429, 195 P.2d 285. The entire purpose of the civil service law is to create a merit system for the determination of the fitness and efficiency of those within the classified service and to prevent discharge therefrom without just grounds. King v. Cole, Ohio App., 62 N.E.2d 650. In the merit system it is intended that no one should be removed except in pursuance of a fair and impartial system of separation from service. Such a system must, necessarily, include (a) specific reasons for removal, and (b) a reasonable hearing before some designated and proper authority as to whether the party whose removal is sought falls within the reasons for removal set forth in the regulations established by the board. Welch v. State Board of Social Security and Welfare, 53 Ariz. 167, 87 P.2d 109. The regulations here provide for written notice of dismissal given two weeks before the effective date, stating specific reasons therefor, with the right of appeal to the personnel board before which a hearing shall be held with the right to present witnesses and give evidence.

In dealing with its own employees, the state has broad powers. The employment here being for an indefinite term, Smith, apart from the regulations, might have been discharged at any time. Except for the regulations he had no vested right to continuance in his employment. In adopting the merit system, the state voluntarily established conditions, among other things, governing the suspension or termination from employment of its employees for the purpose of protecting them against unjustified suspension or dismissal. The provision for an appeal is an integral part of the system establishing the conditions upon which an employee may be suspended or dismissed. The question is not the same had the appeal been intended to afford protection of rights vested in the party by other statutes or the common law. The merit system statute and lawful regulations thereunder in effect write into the contract of each employee the conditions which they embody. Turrill v. Erskine, 134 Conn. 16, 54 A.2d 494; Jones v. Board of School Directors, 55 N.M. 195, 230 P.2d 231; 17 C.J.S., Contracts, § 330, page 782. The law and regulations created new rights and they provide the remedy for the protection of such rights. Wallace v. Neal, 191 Tenn. 240, 232 S.W.2d 49. We recently said in a case involving the right...