State of Ohio v. United States Civil Service Com'n, Civ. No. 644.
| Decision Date | 22 April 1946 |
| Docket Number | Civ. No. 644. |
| Citation | 65 F. Supp. 776 |
| Parties | STATE OF OHIO v. UNITED STATES CIVIL SERVICE COMMISSION. |
| Court | U.S. District Court — Southern District of Ohio |
Hugh S. Jenkins, Atty. Gen., State of Ohio, E. G. Schuessler, Office of Atty. Gen., of Columbus, Ohio, and Isadore Topper, Sp. Counsel to Atty. Gen., for State of Ohio, petitioner.
Francis Shea, Asst. Atty. Gen. of United States, Lawrence V. Meloy, Atty., U. S. Civil Service Commission, of Washington, D. C., Sidney J. Kaplan, Sp. Asst. to U. S. Atty. Gen., Jerome C. Strumpf, Atty., Department of Justice, of Washington, D. C., and Ray J. O'Donnell, U. S. Atty., of Columbus, Ohio, for United States Civil Service Commission, respondent.
This is a proceeding instituted by the State of Ohio to review and set aside an order entered by the United States Civil Service Commission under Section 12(b) of the Hatch Act, 54 Stat. 767, 18 U.S. C.A. § 61l(b) directing the Social Security Board of the Federal Security Agency to withhold from its loans or grants of federal funds to the Ohio Bureau of Unemployment Compensation, an agency of the State of Ohio, on account of said Bureau, the sum of $7,200. The State of Ohio, deeming itself "aggrieved" by said order, seeks review thereof in this Court under and pursuant to the terms of Section 12(c) of the Hatch Act, 18 U.S.C.A. § 61l(c).
Harry J. Patterson, after the passage of Section 12 of the Hatch Act, was employed by the State of Ohio as manager of the Cincinnati Office of the Bureau of Unemployment Compensation of Ohio, at an annual salary of $3,600. His principal employment was in connection with an activity financed in whole or in part by loans or grants made by the United States or by a federal agency, and by the terms of the Hatch Act, he was forbidden to engage in political activity. Sec. 12(a), Hatch Act, 18 U.S.C.A. § 61l(a).
The United States Civil Service Commission found that Patterson, while so employed, engaged in prohibited political activity, and on December 15, 1941, promulgated a final order finding Patterson guilty of violating Section 12(a) of the Act and that such violation warranted his removal as an employee of the Bureau of Unemployment Compensation of the State of Ohio. Notice of such determination was given to Patterson and the State of Ohio by registered mail. Upon failure by the State of Ohio or Patterson to petition for review, the order became final thirty days from the mailing of notice.
On January 1, 1942, the employment of Patterson with the Bureau of Unemployment Compensation of Ohio was terminated. On February 11, 1942, Patterson was employed by the State of Ohio as coordinator of the Council of Defense of the State of Ohio, in charge of automobile and sugar rationing. On June 29, 1942, Patterson was designated Secretary of the Evacuation Committee of the Council.
On July 16, 1942, the attorney for the Civil Service Commission petitioned the Commission for an order to show cause why the Social Security Board should not be directed to withhold from the Bureau of Unemployment Compensation of Ohio, a sum equal to two years compensation at the rate received by Patterson when employed by that Bureau, on the ground that his reemployment by the State of Ohio Council of Defense occurred within eighteen months of his discharge by the Bureau of Unemployment Compensation. On July 16, 1942, the Commission issued an order to show cause addressed to Patterson and the State of Ohio.
The hearing on the order to show cause was held in Columbus, Ohio, before the Chief Hearing Examiner of the Commission on July 31, 1942. Patterson and the State of Ohio appeared and participated in the hearing. On September 24, 1942, the Examiner rendered his preliminary report to the Commission; copies thereof were served on the State of Ohio and Patterson. Thereafter the State filed a brief with the Commission.
On January 4, 1943, the Commission announced its opinion finding that Patterson had been reemployed by an executive agency of the State of Ohio within eighteen months of the date of his removal as an employee of the Bureau of Unemployment Compensation, contrary to the provisions of Section 12(b) of the Hatch Act and directing that a withholding order to the Social Security Board be entered and certified. On the same day such an order was made; on January 5, the order was duly certified to the Social Security Board. On January 28, 1943, the State of Ohio filed its petition in this case to review the withholding order of the Commission. The State of Ohio bases its cause of action upon three principal questions; first, that the Council of Defense, the second employer of Patterson, was a legislative agency and not an executive or departmental agency; second, that the agency first employing Patterson does not now receive federal grants in connection with the activity in which he was employed; and third, that if the Hatch Act requires the withholding ordered, it is an interference with the sovereign powers of the State and therefore violative of the Tenth Amendment to the Constitution of the United States. These specific questions will be discussed in the order in which they have been stated.
As to the first question, it is the contention of the State, that the facts of this case do not bring the reemployment of Patterson within the withholding provisions of Sec. 12(b) of the Hatch Act, 18 U.S.C.A. § 61l(b). It is asserted that the Council of Defense of the State of Ohio was not a "State or local agency"; that is, it was a legislative agency rather than an agency of the executive branch or any department thereof. The provision of the statute is against reemployment in a "State or local agency" of such State, 18 U.S. C.A. § 61l(b), and "State or local agency" is defined as meaning, "the executive branch of any State * * * or any agency or department thereof." 18 U.S. C.A. § 61l(f) (1).
The statutory provisions creating the Council and defining its powers and duties are the best guide as to its character, for it is within this statutory framework that the Council had its origin and existence. An examination of the statutes makes it difficult to understand how they could have been more clearly written to indicate the intention that the Council was to be an arm of the executive branch of the state government.
By express terms of the law, the very existence of the Council was left dependent upon the discretion of the Governor; it was provided that he might "create", "suspend", "dissolve", or "reestablish it". Likewise, the Governor had authority to prescribe its powers and duties within the very general standards fixed by the legislature. Sec. 5286, Ohio G.C. The Governor was made chairman; six members were appointed by the Governor, and eight executive officials appointed by the Governor were made ex officio members, Sec. 5287, Ohio G.C. Clearly these provisions indicate an agency designed to be a part of the executive branch and owing only its legal creation to the legislature. Any other theory is inconsistent with the constitutional departmental theory of the state government.
The Council exercised no powers which an executive agency might not properly exercise. Every administrative body has rule making power to the extent of governing its procedure and activities within statutory limits. Morgan v. T. V. A., 6 Cir., 115 F.2d 990, 994. It may be added that the power of the Council to make rules, orders and regulations, having the force and effect of law, Sec. 5288(b), Ohio G.C., is no longer regarded as a strange power to be possessed by an administrative agency. It may also be added, that the only actual place of the Council in the legislative field is "to report to the governor its recommendations for legislation or other appropriate action as it may deem necessary." Sec. 5288(h), Ohio G.C. Although even the chief executive, makes recommendation to the legislature for legislation, the Council could make them only to the chief executive.
It is the conclusion of this Court that the Council of Defense of the State of Ohio must be held to be a "State or local agency", within the intent and meaning of Sec. 12(b) of the Hatch Act, and within the terms of Sec. 61l(b), 18 U.S. C.A.
The second question for determination is whether or not a withholding order can be made where the agency in which Patterson was employed prior to his discharge for violation of the Hatch Act, does not now receive federal grants in connection with the activities in which he was employed. The State of course maintains that a withholding order is not authorized under the circumstances. The terms of the Act are specific in this regard. The prohibition of Sec. 12(a) of the Hatch Act is placed upon an: "officer or employee of any State or local agency whose principal employment is in connection with any activity which is financed in whole or in part by loans or grants made by the United States or by any Federal agency." The Bureau of Unemployment Compensation of the State of Ohio, as Patterson's employer, qualified under that provision, and Patterson likewise met the qualifications as an "officer or employee".
As to the withholding provision of Section 12(b) of the Act, it is provided that notice shall be given to the employing the offending person. It is further provided that: "If in any case the Commission finds that such officer or employee * * * has been so removed and has subsequently (within a period of eighteen months) been appointed to any office or employment in any State or local agency in such State, the Commission shall make and certify to the appropriate Federal agency an order requiring it to withhold from the loans or grants to the State or local agency to which such notification was given an amount equal to two years' compensation at the rate such officer or employee was receiving at the time of such violation * * *."
There is no qualification in the statute which would permit the...
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Fela v. US, Merit Systems Protection Bd., C88-2553A
...period when the violations took place, he had a direct connection with federal funding. The case of State of Ohio v. United States Civil Service Commission, 65 F.Supp. 776 (S.D.Ohio 1946), provides that the dispositive issue of the withholding provision is that the violator must be connecte......