State ex rel. Karnes v. Dadisman

• Decision Date: 03 March 1970
• Docket Number: No. 12884,12884
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Charles I. KARNES v. Ira L. DADISMAN, Jr., etc., et al.

Page 561

172 S.E.2d 561

153 W.Va. 771

STATE ex rel. Charles I. KARNES v. Ira L. DADISMAN, Jr., etc., et al.

No. 12884.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1970.

Decided March 3, 1970.

Syllabus by the Court

1. 'It is well settled that in the absence of evidence to the contrary public officers will be presumed to have properly performed their duties and not to have acted illegally, but regularly and in a lawful manner.' State ex rel. Staley v. County Court of Wayne County, 137 W.Va. 431 (73 S.E.2d 827).

2. Civil service laws are designed to afford to covered employees security of tenure and such employees may not be removed from their positions by executive order or in any manner unless, upon a requested hearing, good cause for removal be shown to exist.

3. Where a governor by an executive order adds to the list of positions in the classified service, pursuant to the provisions of Code, 1931, 29--6--2, as amended, a succeeding governor can not declare the executive order of his predecessor fatally defective and void.

Walter W. Burton, Burton & Burton, Princeton, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Joseph E. Hodgson, Asst. Atty. Gen., Charleston, for respondents.

CAPLAN, Judge.

This is an original proceeding in mandamus wherein the petitioner, Charles I. Karnes, seeks a writ to compel the respondents, Ira L. Dadisman, Jr., Director of Personnel of the Civil Service System of West Virginia, and Donald E. Ryder, Robert L. Elkins and Luther R. Jones, members of the Civil Service Commission of West Virginia, to grant him, the petitioner, a hearing in accordance with the rules of the aforementioned civil service system on his discharge of August 14, 1969. Upon the petition and its exhibits this Court awarded a rule, returnable January 14, 1970. On that date the matter was submitted for decision upon the petition and its exhibits, upon the demurrer, answer and plea in abatement of the respondents, upon the petitioner's demurrer to the answer and replication to the plea in abatement and upon the oral arguments and briefs of counsel for the respective parties.

The allegations in the petition for the writ, in substance, are that the petitioner on and for many years prior to August 14, 1969 was employed by the Alcohol Beverage Control Commissioner as merchandising director; that on or about December 23, 1968, Harrison Everett, then the Alcohol Beverage Control Commissioner, by letter, requested the West Virginia Civil Service System to include the employees of she Alcohol Beverage Control Commissioner under said civil service system; that, as indicated by the minutes of its meeting, the Civil Service Commission placed such employees under the civil service system; that on January 11, 1969, the then Governor, the Honorable Hulett C. Smith, issued Executive Order No. 5--69, effectuating the agreement between the Alcohol Beverage Control Commissioner and the West Virginia Civil Service System to place such employees under the protection of said system; that the petitioner continued as a civil service protected employee until May 29, 1969, when the then and present Alcohol Beverage Control Commissioner attempted to discharge him from his position without complying with the rules and regulations of the civil service system; that upon receiving no reply from his written appeal from the attempted discharge, the petitioner's attorney, by letter dated July 1, 1969, demanded an answer; that on July 7, 1969, the respondents held an ex parte hearing regarding said dismissal, and, as indicated by a letter of record, admitted that Mr. Karnes was an employee covered by the civil service system; that by Executive Order No. 3M--69, dated July 14, 1969, the Honorable Arch A. Moore, Jr., Governor of the State of West Virginia, attempted to remove the aforesaid employees from the protection of the civil service system; that on August 14, 1969, the Alcohol Beverage Control Commissioner instructed the payroll clerk to remove the petitioner from the payroll without complying with the aforesaid rules and regulations; that the petitioner's demand for a hearing was refused on the ground that said Executive Order No. 3M--69 effectively removed him from coverage under the civil service system; and that the refusal of the respondents to grant him a hearing was arbitrary and unwarranted.

The respondents, through their pleadings, do not deny the basic facts alleged in the petition. They acknowledge that Mr. Karnes was an employee of the Alcohol Beverage Control Commissioner and that he was discharged from such employment without a hearing. However, they firmly dispute the interpretation placed by the petitioner on the various letters and instruments involved in this proceeding. The basic position of the respondents is that the petitioner, by reason of a defective executive order, was never covered by civil service and was therefore not entitled to a hearing on his discharge.

The validity of former Governor Smith's Executive Order No. 5--69 is in issue in this proceeding. If it is in compliance with the provisions of Code, 1931, 29--6--2, as amended, it is valid and the writ will be awarded; if, on the other hand, such executive order does not comply with the requirements of said code section it is invalid and the writ will be denied.

Specifically, the respondents contend that Executive Order No. 5--69 is deficient for the following reasons: (1) the order was not issued with the written consent of the civil service commission and the appointing authority; (2) the order purported to include all employees in the subject department except those therein specifically excepted, whereas it should have listed certain positions to be included in the classified service; (3) the order attempts to place under civil service coverage positions that are specifically excluded by statute; (4) the order did not place such employees undr the civil service system but merely directed the appointing authority and the civil service commission to take the necessary action to place all positions, with certain exceptions, under civil service coverage; and, (5) that the order is vague and impossible of implementation.

In determining the validity or invalidity of Governor Smith's order, it is essential to consider the statute which gives a governor the authority to add to the civil service rolls. This statute, Code, 1931, 29--6--2, as amended, provides where pertinent:

'The governor may, by executive order, with the written consent of the civil service commission and the appointing authority concerned, add to the list of positions in the classified service, but such additions shall not include the following:' (Fourteen categories of employees are listed, only six of which could be applicable to the instant case.)

Governor Smith's executive order recites that 'the Commissioner of the West Virginia Alcohol Beverage Control Commission, has recommended Civil Service coverage for all employees of the Commission; * * *.' The initiative taken by the Alcohol Beverage Control Commissioner is reflected by the letter he forwarded to Mr. Dadisman, Director of the West Virginia Civil Service System and a respondent herein.

The respondents complain that the Alcohol Beverage Control Commissioners' letter does not constitute consent as required by the above statute. This being a major contention in this proceeding, Mr. Everett's letter is quoted in full and reads as follows:

'After considerable research, review, and consultation, it has been determined that the placing of the state department technically identified as West Virginia Alcohol Beverage Control Commissioner under the West Virginia Civil Service System would be materially advantageous to the State of West Virginia in promoting a higher degree of stabilization and efficiency of its personnel.

'This letter, therefore, expresses my desire and recommendation on the subject and I will await your reply for further guidance.'

This letter, in our opinion, clearly constitutes the written consent of the appointing authority to add the employees of his department to the classified service, as contemplated by the above quoted statute. To hold otherwise would lend undue significance to the word 'consent', would elevate its meaning beyond the clear intent of the legislature and would ignore the plain purpose of the statute. The statute is clearly designed to prevent a governor from placing employees of a department under the civil service system without the consent or approval of the appointing authority. Such appointing authority is cognizant of the workings and needs of the department and is fully apprised of the various duties of his employees. He, therefore, is in the best position to know whether such civil service coverage is feasible for his department and whether it will enhance the administration thereof.

In the instant case, when the Commissioner, in writing, initiated the procedure to effect civil service coverage for employees of his department and where he therein clearly expressed his favorable recommendation for such coverage, he gave the written consent contemplated by the statute. Consent, as used in the above statute, means no more than approval and when one favorably recommends that a thing be done in a certain manner he unquestionably notes his approval thereof. No other connotation can be attributed to his words. We, therefore, find entirely without merit the respondents' contention that Commissioner Everett's letter did not constitute the consent required by the subject statute.

The matter of failure to give written consent is again raised by the respondents. They aver in their answer that 'at no time did the Civil Service Commission itself execute with the Alcohol Beverage Control Commissioner and submit to the Governor a written consent for the Governor's adding to the list of positions in the classified service.' It must be determined whether the...