628 S.E.2d 589 | Ga. | 2006
Lead Opinion
In 1996 and again in 2000, the General Assembly amended OCGA § 45-20-2 (15), which defines “unclassified service” as that term relates to the State Merit System. Ga. L. 1996, pp. 684, 687, § 2; Ga. L. 2000, pp. 1377,1382, § 1. The effect of those amendments was to remove persons hired after July 1,1996 from that class of employees whose employment is subject to the rules of the merit system, as
[t]he [State Personnel Bjoard shall provide policy direction for a State Merit System of Personnel Administration and may be vested with such additional powers and duties as provided by law. State personnel shall be selected on the basis of merit as provided by law.
Employees specifically contended that Art. IV, Sec. Ill, Par. I (b) mandates a state merit system which, as a matter of constitutional law, must include such traditional features as tenure and appeal rights. However, after conducting a hearing, the trial court found that the amendments did not violate the constitutional provision. Employees appeal from that order of the trial court.
Employees place primary emphasis on the principle that, in construing Art. IV, Sec. Ill, Par. I, this Court must consider the intention of the framers and “ ‘ascertain the prior law, the mischief, and the remedy.’ ” Clarke v. Johnson, 199 Ga. 163, 166 (33 SE2d 425) (1945). However, that is only one of several applicable rules of constitutional construction, all of which must be given full and equal effect. Accordingly, we must presume that acts of the General Assembly are constitutional, and never declare them void “ ‘except in a clear and urgent case____’ [Cit.]” Brugman v. State, 255 Ga. 407, 414 (5) (339 SE2d 244) (1986). “Our duty is to construe and apply the Constitution as it is now written.” Buford v. Buford, 231 Ga. 9, 12 (200 SE2d 97) (1973), overruled on other grounds, Ledford v. Bowers, 248 Ga. 804, 807 (2) (d) (286 SE2d 293) (1982). “[T]his Court must honor the plain and unambiguous meaning of a constitutional provision. [Cit.]” Lowry v. McDuffie, 269 Ga. 202, 206 (3) (496 SE2d 727) (1998). Where a constitutional provision “ ‘is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. (Cits.)’ [Cit.]” Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).
For purposes of applying that principle upon which Employees rely most heavily, the relevant “prior law” for determining the intention of the framers of Art. IV, Sec. Ill, Par. I is “at will” employment.
Tenure and the right to appeal certainly can constitute features of a merit system. However, the language of Art. IV, Sec. Ill, Par. I does not make any mention of those features. Indeed, that constitutional provision does not, as Employees would seem to contend, create the State Merit System. Instead, as previously noted, it only creates a State Personnel Board, and then provides in subsection (b) that that
[B]oard shall provide policy direction for a State Merit System of Personnel Administration and maybe vested with such additional powers and duties as provided by law. State personnel shall be selected on the basis of merit as provided by law. (Emphasis supplied.)
Clearly, the selection of state employees based upon merit is “as provided by law,” not as set forth in that provision of our Constitution. Thus, Art. IV, Sec. Ill, Par. I creates a State Personnel Board with authority to direct the policy of “a” State Merit System, but it leaves it to the General Assembly to actually create the State Merit System by enactment of laws regarding the selection of state personnel based upon merit.
Since, by its unambiguous terms, Art. IV, Sec. III, Par. I does not purport to create a State Merit System, a denomination of that provision as our constitution’s Merit System provision would be entirely misleading. Consistent with the mandate of Art. IV, Sec. Ill, Par. I (b), the State Merit System is itself a creation of statute. OCGA § 45-20-1 et seq. Had the framers intended to create, as matter of constitutional, rather than statutory, law, a State Merit System which included features such as tenure and the right of appeal, they could have so provided. See McCafferty v. Medical College of Ga., 249 Ga. 62, 68 (287 SE2d 171) (1982) (constitutional provision granting Board of Regents “ ‘the powers and duties as provided by law existing at the time of the adoption of the Constitution of 1945...’ ”), overruled on other grounds, Self v. City of Atlanta, 259 Ga. 78, 80 (1) (377 SE2d 674) (1989). However, they did not do so. Nothing in Art. IV, Sec. III, Par. I (b) can be construed as divesting the General Assembly of the authority to determine what rights and benefits accrue to state employees under the State Merit System. Under that provision, the State Personnel Board has the constitutional authority to provide
Thus, the “remedy” for the “mischief’ of the spoils system is clearly not Art. IV, Sec. Ill, Par. I. Instead, the “remedy” for that “mischief’ is OCGA§ 45-20-1 et seq., enacted by the General Assembly pursuant to its authority under that constitutional provision to legislate with regard to the selection of state employees based upon merit. “ Tt is the “spoil [s] system” that Civil Service desires to eradicate. . . .’ [Cit.] We believe that the Georgia Merit System Law ([cit.]) was enacted with the same purpose as other civil service legislation in this country. . . (Emphasis supplied.) Scott v. Undercover, 108 Ga. App. 460, 463 (133 SE2d 444) (1963).
We have repeatedly held that legislation providing systems for public employment [is] subject to amendment or even repeal. [Cits.] The Merit System Act was never intended as protection of positions. It is instead legislation which provides a system for a more stable government administered by persons who are protected from political whim. It therefore amounts to a system which protects people and not positions. (Emphasis supplied.)
Clark v. State Personnel Bd., supra at 550 (2) (b). Accordingly, any protection provided for state employees is exclusively a function of legislation, not the Constitution. In the absence of a constitutional amendment which creates a State Merit System and which sets forth enumerated rights for state employees, the determination of how best to “remedy” the “mischief’ of the spoils system is a matter which Art. IV, Sec. Ill, Par. I leaves entirely for the General Assembly.
Where the natural and reasonable meaning of a constitutional provision is clear and capable of a “natural and reasonable construction” ([cit.]), courts are not authorized either to read into or to read out that which would add to or change its meaning.
Foster v. Brown, 199 Ga. 444, 460 (34 SE2d 530) (1945) (On Motion for Rehearing).
Judgment affirmed.
Dissenting Opinion
dissenting.
A majority of this Court has approved today of legislative action which effectively repeals a constitutional provision without taking the approved course of submitting to the people the question whether they wished to have their constitution changed. Together, the statutory amendments at the heart of this case have the effect of destroying the system of personnel administration which has safeguarded state employees and state government from whim and political influence since 1943 and which has been a matter of constitutional law since 1945. The “spoils system,” which the Merit System Provision of the Georgia Constitution was intended to counter, has been invited back into our state government by a combination of unconstitutional legislative action and the refusal of a majority of this Court to recognize and give effect to the intent of the framers of the 1945 Constitution.
Because the net effect of the legislation at issue here is to remove every position in State government from coverage under the Merit System and, thus, to eliminate as an element of government employment such protections as discharge from employment only for cause (tenure) and the right to appeal adverse employment actions, the central question in this case is whether the “State Merit System” mandated in Art. IV, Sec. Ill, Par. I (b) of our Constitution must, as a matter of constitutional law, include such traditional features of a merit system as tenure for employees and appeal rights. “In determining the meaning of a provision of the Constitution, due consideration should be given to the intention of its framers.” Houlihan v. Saussy, 206 Ga. 1, 3 (55 SE2d 557) (1949). We believe the trial court, in seeking to apply that principle, focused its consideration of the intent of the framers too narrowly, resulting in an erroneous conclusion regarding the intent of the framers of our Constitution’s Merit System Provision. The majority compounds the error by ignoring the intent entirely. Contrary to the trial court’s holding and the hyper-technical construction created by the majority on this appeal, I
In Clarke v. Johnson, 199 Ga. 163, 166 (33 SE2d 425) (1945), this Court quoted approvingly from a treatise as follows:
“In placing a construction on a constitution or any clause or part thereof, a court should look to the history of the times and examine the state of things existing when the constitution was framed and adopted, in order to ascertain the prior law, the mischief, and the remedy. A constitutional provision must be presumed to have been framed and adopted in the light and understanding of prior and existing laws and with reference to them. Constitutions, like statutes, are properly to be expounded in the light of conditions existing at the time of their adoption.” [Cit.]
Applying that principle, which is consistent with the reminder in OCGA§ 1-3-1 (a) to keep “in view at all times the old law, the evil, and the remedy,” we must consider in ascertaining the intent of the framers of the Merit System Provision the context in which it was originally made a part of the 1945 Constitution and answer the question posed in Clarke v. Johnson, supra: “What were the circumstances and conditions existing at the time of the adoption of the [provision] now being construed?”
The prior law to be considered was “at will” employment, terminable by the employer without cause. OCGA § 34-7-1 (“An indefinite hiring may be terminated at will by either party”). The mischief, or “[t]he evil which the constitutional provision... intended to remedy” (Turman v. Cargill & Daniel, 54 Ga. 663 (3) (1875)), was the “patronage” or “spoils” system
The federal government led the way in reforming public employment, putting in place a civil service based on merit principles in 1883, shortly after President James A. Garfield was assassinated by a dissatisfied officer-seeker. Arnett v. Kennedy, 416 U. S. 134, 148-149 (94 SC 1633, 40 LE2d 15) (1974). Although the provisions of that first “merit system” act were minimal, dealing primarily with entry into government service, the concept had evolved by 1913 into a system that included tenure and appeal rights. Id. That system spread to state governments by means of amendments to the Social Security Act in 1939 requiring states receiving federal funds for certain programs to establish merit systems. See State ex rel. Hennepin County Welfare Bd. v. Fitzsimmons, 239 Minn. 407 (58 NW2d 882) (1953). The minimal standards promulgated by the Social Security Board for those state merit systems included selection of employees on the basis of merit, removal from employment only for cause, and the right to appeal removal from employment. Social Security Administration, Social Security in Review, 2 Social Security Bulletin 9 (Sept. 1939). Georgia complied with the requirements of the Social Security Act by enacting in 1943 the Merit System Established Act. Ga. L. 1943, pp. 171-177. That act, which specified that the rules of the Merit System were to conform to the minimum standards established by the federal government (id. at 174), called for the creation of “a merit system of personnel administration” and specifically provided for employee tenure and appeal rights.
Consideration of the context in which the Merit System Provision of our Constitution was enacted points irresistibly to the conclusion that when the framers of the 1945 Constitution’s Merit System Provision used the term “Merit System,” they referred specifically to the system Georgia had put in place two years earlier for the expressed purpose of meeting the requirements of the Social Security Act. That is to say, the framers incorporated into the Constitution the already established provisions of the 1943 Merit System Established Act and the federal standards promulgated by the Social Security Act, including such essential elements as employee tenure and appeal rights.
The State put forth several arguments in support of the trial court’s decision, but all those arguments were premised on ignoring the meaning of the phrase “Merit System” as it was understood by the
The trial court’s rejection of Employees’ argument that the Merit System Provision of the 1945 Constitution was intended to incorporate, by use of the term “Merit System,” the existing elements of a merit system was based on several flawed premises. Firstly, the trial court’s holding that the absence of certain words such as “tenure” and “appeal rights” establishes that the framers did not intend to include the essential elements of a merit system was, as noted above, based on too narrow a consideration of the intent of the framers. As discussed in the preceding paragraphs, the use of the term “Merit System” was, in the context of the development of merit systems as a federal mandate, sufficient to bring into the Merit System Provision
Secondly, the trial court demonstrated a basic misunderstanding of the origin of the Merit System Provision by stating that the “1945 Constitutional Revision Commission considered and rejected more detailed drafts of the 1945 Merit System Provision in favor of the more general provision actually adopted. ...” Included in the record of this case are portions of the “Records of the Commission of 1943-1944 to Revise the Constitution of Georgia,” which show the provision the Commission sent to the legislature was not that eventually adopted, but was instead one which placed control of the merit system in the legislature. Also in the record are portions of the Senate and House Journals of 1945 showing that the Merit System Provision actually adopted was one originating in the Senate and including provision for a “State Merit System.” Rather than supporting the trial court’s conclusion, the record supports the argument advanced by Employees that the framers intended to “constitutionalize” the concept of a merit system as it then existed.
Thirdly, the trial court’s ruling that Georgia’s first merit system legislation, the Merit System Established Act, was not “frozen” into the Constitution relies solely on the method for incorporating statutory provisions into the Constitution recognized in McCafferty v. Medical College of Ga., 249 Ga. 62 (287 SE2d 171) (1982), overruled on other grounds in Self v. City of Atlanta, 259 Ga. 78 (1) (377 SE2d 674) (1989). In McCafferty, a provision in the 1945 Constitution providing that the Board of Regents “shall have the powers and duties as provided by law existing at the time of the adoption of this Constitution ...” was recognized by this Court as incorporating into the Constitution previous legislation on the subject. Id. at 67. That case did not hold, however, that the method used there was the only method for constitutionalizing existing law. As we noted above, consideration of the historical record compels us to conclude the framers of the Merit System Provision intended to incorporate into the Constitution the basic elements of the concept of merit systems as previously enacted in the Merit System Established Act. Again, the majority opinion in this case ignores these matters entirely in favor of an analysis more concerned with the use of “a” rather than “the” in the Merit System Provision, permitting the legislature to change by its own action what it should have submitted to the people as a constitutional amendment.
Finally, the trial court’s reliance on this Court’s decision in Clark v. State Personnel Bd., 252 Ga. 548 (314 SE2d 658) (1984), was misplaced. The trial court cited that decision for the proposition that the legislature has authority to remove positions from the coverage of
lower level employees, who exercise little or no discretion in matters of public policy, from having their jobs depend on the whims of elected officials, while leaving higher level managers, who exercise much more discretion, unprotected, and thus more responsive and accountable to political events, elected officials, and, ultimately, the electorate.
(Footnotes omitted.) 15AAmJur2d 28, 29, Civil Service, § 16. Removal of all positions from the coverage of the merit system cannot be justified under either that principle or this Court’s decision in Clark.
This Court’s decision today does harm to our state government in several ways. First, it endorses the choice of the legislature to deprive the electorate of its right to control the Constitution, avoiding the uncertain process of constitutional amendment by legislation that undoes the constitutional action taken by the people in ratifying the 1945 Constitution and its successors. Second, it deprives state employees of a system of protection against arbitrary decisions in personnel actions which has been in place for more than half a century. Last, it deprives the people of Georgia of the only system of personnel administration that has increased the effectiveness of
The designation of a patronage system as a “spoils” system may stem from the remarks of William Learned Marcy who, as a senator from New York, spoke in the United States Senate on January 25,1832, defending the appointment of Martin Van Burén as Minister to England against an attack from Senator Henry Clay:
It may be, sir, that the politicians of the United States are not so fastidious as some gentlemen are, as to disclosing the principles on which they act. They boldly preach what they practise. When they are contending for victory, they avow their intention of enjoying the fruits of it. If they are defeated, they expect to retire from office. If they are successful, they claim, as a matter of right, the advantages of success. They see nothing wrong in the rule, that to the victor belong the spoils of the enemy.
Register of Debates in Congress, vol. 8, col. 1325, quoted in Respectfully Quoted: A Dictionary of Quotations Requested from the Congressional Research Service, Platt, Suzy, ed., Library of Congress, n.d., 1989; http: //www.bartleby.com/73/1314.html.
