Opinion letter to Mr. Edward A. Godar

May 12, 1975 Mr. Edward A. Godar Director, Personnel Division Office of Administration 117 East Dunklin Street Jefferson City, Missouri 65101 Dear Mr. Godar : OPINI ON LETTER NO . 28 Answer by Letter - Ver hagen This letter is in answer to your r equest pertaining to the suspension, demotion or dismissal of state civil service employees. For the purposes of this opinion, your question has been summarized into the following query : "Is the arrest and charge of a felony or misdemeanor, of which the employee has yet to be convicted, sufficient for suspension or dismissal under Rule 13.2 of the Rules and Regulations of the Personnel Advisory Board, where the employee's culpable conduct is not directly related to job performance? " This opinion will deal only with that conduct of the employee which is not job-related. Section 36.370, House Bill No. 8, First Extraordinary Ses- sion, 77th General Assembly, states in part that : "An appointing authority may, for disci- plinary purposes , suspend without pay any employee in his division for such length of time as he considers appropriate, not exceed- ing twenty calendar days in any twelve- month period. • • • " Mr. Edward A. Godar Rule 13.2 of the Missouri State Personnel Advisory Board provides, inter alia, that a civil service employee may be discharged or suspended if: ., (g) [He] has been convicted of a felony, or of a misdemeanor involving moral turpitude; • • • " (Emphasis supplied) • Without reaching the question of what constitutes a crime involv- ing moral turpitude, it is our opinion that Section (g), requires that an employee be convicted of a crime before he may be disci- plined under that section. We feel such a conclusion follows from the plain language of the section itself, and from the judi- cial decisions interpreting civil service law. When specific grounds for removal or suspension are estab- lished, they are to be strictly construed. State ex rel. Hardie v. Coleman, 155 So. 129, 115 Fla. 119 (1934). When removal or suspension is based on the commission of a crime, it must be shown that the employee was actually convicted of the crime before disciplinary action is warranted. State v. Henderson, 146 So. 456, 166 Miss. 530 (1933); Smith v. Commonwealth, 113 S.E. 707, 134 Va. 589 (1922). In addition, it is submitted that Section (g) of Rule 13.2 is, on its face, devoid of ambiguity in its mandate that an em- ployee be convicted of a crime before he is subject to disciplin- ary proceedings by the Personnel Advisory Board. Therefore, it is our opinion that the mere arrest and impo- sition of criminal charges against a state civil service employee is not, in itself, grounds for disciplinary action being taken against him. Very truly yours, JOHN C. DANFORTH Attorney General - 2 -