Case Information

*1 Honorable Adam R. Johnson

Executive Director

State Department of Public Welfare

Austin, Texas

Chairman and Executive Director

Texas Unemployment Compensation Commission

Austin, Texas

Gentlemen:

Opinion No. O-1752 Re: May a Joint Merit System Council be established ';y the Executive Directors of the State Department of Public Welfare end Texas Unemployment Compensation Collmission?

We received your letter of December 1, 1939, in which you request our opinion on the following question:

"DO we have authority under the laws creating these agen- cies and the general laws of the State of Texas to establish by regulation such a Joint Merit System Council as that contemplated by the minimum standards of the Social Security Board; or, in the absence of any specific statutory authorization, is there any prohibition'against such joint action by us?" You advise that the Federal Security Agency has adopted minimum standards for a merit system of personnel administration and enclose a copy of the minimum standards for a merit system in these agencies. A perusal of the minimum standards set out in the folder discloses that in the absence of a State civil service system there will be established a merit system admin-~ istered by.an impartial body referred to s.s the Merit System Council, the members of which are to be appointed by the administrative agencies or by the Governor on recommendation of the administrative agencies, for stated overlap- ping terms, and no member of which is otherwise employed as an official or employee of any of the State agencies affected. Briefly stated, the minimum standards provide for a complete merit system or civil service plan to be ad- ministered by the Merit System Council. Among other requirements, the Council *2 Honorable Adam R. Johnssn, Page 2 (O-1752)

is to appoint a merit system supervisor to conduct written exsminations~ given to appliCmtB, and establish registers of eligibles. All poBitions not spe- cifically exempted are to be filled from a regieter of eligibles which will include a limited number of the highest available eligibles. Further, the eligibility of an employee for promotion will be determined on recommendation of the agency and certification by the merit system supervisor that the em- ployee meets the minimum requirements and qualified for promotion to the class of position in question.

A scrutiny of the statutes reveals that the selection of employees for the State Department of Public Welfare been vested in the executive director and the members of the board. Section k of Article 695c, Revised Civil Statutes of Texas, reads:

"The Executive Director shall be the executive and admin- officer of the State Department. The Executive Direc- iBtmtiVe tor, with the consent and approvals of a majority of the members of the Board shall:

“a. Classify all positions In the administration of this

Act;

"b. Fix objective BtandardB for all positions included in the classifications;

"C. Formulate salary schedules for the services so cla~si- fled, subject to biennial appropriations;

"d. Provide for a fair and impartial selection, appoint- ment, retention and promotion of personnel in accordance with the classification and compensation plans therein before pro- vided."

The authority to appoint employees for the Texas Unemployment Com- pensation Commission rests with the Commission. Article 5221-b-9, Subdivi- sion (d), Revised Civil Statutes, provides as follows:

"Personnel: Subject to other provision6 of this Act, the iB authorized to appoint, fix the compensation, and Commission prescribe the duties and powers of such officers, accountants, attorneys, experts, and other persons as may be necessary in the performance of its duties. The Commission shall not em- ploye or pay any person who is an officer or cossnittee member of any political party organization. The Comis~ion may dele- gate to any such person so appointed such power and authority as it deems reasonable and proper for the effective adminis- tration of this Act, and may, in its discretion, bond any per- Son handling moneys or signing checks hereunder." *3 Honorable Adam R. Johnson, Page 3 (O-1752)

Honorable Orville S. Carpenter

When a civil service cosunieeion 16 provided for by statute, it takes over certain powers that were formerly vested in the administrative head or appointing power of the Sovenussnt. The Legislature takes the power to appoint employees or remove them and places this function in the hand8 of an impartial body. It transfers from one head to another certain administrative powers; and, in creating civil service commissionB, the Legislature trsnsfers the em- ployment bureau of the Government to a new body. Herman J. Friedman, 25 Har- vard Law Review 712.

Under the related facts, the creation of a civil service or merit system of personnel administration by mutual agreement between two separate appointing powers is not permissible in the absence of statutory enactment.

The selection and appointing power of each agency has been provided for in the statutes quoted and where the Legislature delegating a power directs the manner of its exercise, that method is exclusive of all othere. 39 T. J. 68; Wichita Electric Co. v. Hinckley, 131 S. W. 1192.

Since the ultimate appointee is a public officer and so an "agent of the sovereign people of the State", hs BUBt "derive his author- or servsnt ity either by election by the people or appointment by that tribune to whom the people have confided the power of appointment." State v. Washburn, Sup. Ct. of MIBBOLI~I, 67 S. W. 592.

The duty of investigating and determining as to the qualifications of applicants for public position placed on the appointing power. When the Legislature placed the authority of making appointments upon officers and boards, and vests them withna discretion and judgment to determine who is best qualified to serve the public, the courts cannot supervise the exer- cise of such authority, nor control the discretion and judgment ^[80] vested. An appointment consists in the choice by the appointing power of the person appointed, end involves the exercise of discretion. While the appointing power may listen to the recommendation or advice of other8 . . . yet the Be- lection must finally be the act of the appointing power. I.2 C. J. 897; Dever V. Humphrey, sup. Ct. Of &nBaB, 75 Pacific 1037; 45 C. J. 952. The creation of such a board by the agenCie8 named would mount to

an exercise of 1egiBhtiVe power, a prerogative.reeerved to the legislative body, of this state by our Texas Constitution, Article III, Section 1. that this will snswer your inquiry, we are

Trusting YOUrB very truly APPROVED DEC 9, 1939 APPROVED ATTORNEY GENEXAL OF TEXAS

OPINION I*/ Gerald c. Mann coM?.frrrm By /B/ RirBchie Johnson

BY /B/ BWR Hirschie Johnson ATTORNEX CENERALOFTEXAS CHAIRMAN ABBiBtallt HJ:RS:IM