Department of Health & Social Services v. State Personnel Board

SHIRLEY S. ABRAHAMSON, J.

(dissenting). The majority concludes that an employee with permanent status in class who transfers to a different department to serve a probationary period does not have any protections of the civil service statutes based on his prior position.1 The majority states that it reaches this con-*690elusion because “the specific statutory mandate is unambiguous and more general policy considerations can not control.” I respectfully dissent. Neither sec. 16.22 (1) (d), relied on by the majority, nor any of the other provisions of ch. 16, Stats., deals explicitly with the civil service protections afforded employees who make interdepartmental transfers. Therefore, we must rely upon “more general policy considerations” to discern the intent of the legislature. “The cardinal rule in interpreting statutes is that the purpose of the act is to be sought and is favored over a consideration which will defeat the manifest object of the act.” Student Asso., U of Wis.-Milw. v. Baum, 74 Wis.2d 283, 294-5, 246 N.W.2d 622 (1976).

Chapter 16 reveals the State’s deep commitment to a strong, efficient merit system and to encouraging people to make state service their career.2 Sec. 16.01(1), Stats., explicitly sets forth the purpose of the civil service statutes:

“It is the purpose of this subchapter [entitled Civil Service] to provide state agencies and institutions of higher education with competent personnel which will furnish state services to its citizens as fairly, efficiently and effectively as possible.”

To achieve this goal, the legislature explicitly sets forth in sec. 16.01(2), Stats., the state policy to maintain a strong coordinated state-wide personnel management program:

“ (2) It is the policy of the state to maintain a strong coordinated personnel management program and to assure that positions in the classified service are filled through methods which apply the merit principle, with *691adequate civil service safeguards. To these ends the bureau of personnel with advice and quasi-judicial assistance by the personnel board shall develop, improve and protect a state-wide personnel management program which assures that the state hires the best qualified persons available and bases the treatment of its employes upon the relative value of each employe’s services and his demonstrated competence and fitness.”

Thus the legislature views the civil service system as a state-wide system, not a department-by-department system.

The legislature’s expressed policy in the civil service statutes is to recruit “on the broadest base consistent with sound personnel management practice,” sec. 16.10; to hire “the best qualified person available,” sec. 16.01 (2); and to fill vacancies “by competition limited to persons in the classified services” if in the judgment of the Director of the Bureau of Personnel the group of applicants best able to meet the requirements of the position are available within the classified service, sec. 16.15.

Requiring an employee to risk losing the security of his or her position in the classified service in order to advance within the classified civil service creates an obvious disincentive to the employee to accept a promotion and thus conflicts with the legislature’s announced policies.

The statutes clearly provide that had Ferguson been promoted or had a change in job status within his department, there would be no effect on his permanent status in class and rights. Sec. 16.22(1) (d), Stats. The majority reasons from this provision that the legislature’s silence as to the effect of an inter-departmental transfer means that an employee loses all rights in the civil service system in an inter-departmental transfer. I see no reason to construe the statutes to require that Ferguson lose all rights in the civil service system if he accepts a promotion in an agency across the hall.

*692I conclude that Ferguson was properly dismissed from his higher position (Information Specialist 3) in which he was on probation. I further conclude that the statutes do not require that Ferguson be returned to his former position (Information Specialist 2) with either the University or the Department of Health & Social Services. I do, however, believe that the statutes require that Ferguson and persons similarly situated be given some protection under the civil service system, balancing the needs of the state and the need to assure the fair treatment of persons in the civil service system.3

It is not appropriate for this court, as this case is presented to us, to determine the protections to which Ferguson is entitled. This determination is one which should be made by the appropriate entity to which the legislature has delegated the administration of the civil service statutes.4

I would reverse the order of the circuit court and direct the circuit court to remand the cause to the Per*693sonnel Board for further proceedings not inconsistent with this opinion.

The majority upholds the validity of Pers. 14.03(2), Admin. Code, which allows such an employee to be “dismissed from the service without the right of appeal.” [Emphasis added.] Thus an *690employee’s discharge from the department in which he is on probation is in practical effect a discharge from State employment.

See Report of the Employment Relations Study Commission, Wisconsin Civil Service (1977).

See, for example, see. 16.25, Stats., granting restoration and reinstatement privileges to any person who has held a position and obtained permanent status in a class under the civil service law and rules and has separated from service or to any person who separates from a position while serving a probationary period. Neither the parties nor the Board considered whether sec. 16.25, Stats., is applicable to the case at bar. See also Pers. 15.04(1) and Pers. Ch. 16, Adm. Code.

The legislature has charged the Director of the Bureau of Personnel with the effective administration of the laws relating to the civil service and has empowered the Director to promulgate rules for the effective operation of the civil service system, subject to the approval by the Board. Sec. 16.03, Stats. The Personnel Board is authorized, inter alia, to make investigations, hold hearings, and issue recommendations on all matters touching the enforcement and effect of the civil service statutes; after investigation the Board may issue orders remanding the matter to the director or agency for appropriate action under the law. Sec. 16.05, Stats.