Division heads who are provided for in departmental plans pursuant to Section 1.6(2) of S.B. No. 1, First Extraordinary Session, General Assembly, are division heads who are to be appointed by the department director under Section 1.6(6) of S.B. No. 1, and therefore such appointments come under the exemption of subsection 1(1) of Section 36.030, H.B. No. 8, First Extraordinary Session, General Assembly, and are not covered by provisions of the merit system law, subject, of course, to Article IV, Section 19, Constitution of Missouri.

GOVERNOR : MJo:RI1' SYSTEM: REORGANfZATION ACT: DJV lSlON OF /\DMIN J S'l'Rl\TION : COMMISSIONER OF ADMINISTRATION: Division heads who arc provided for in departmental plilns pur- stt<lnt to Section 1.6(2) ol s.n. No . l , First Extraordln<~ry Sl' ~;­ Hion, 77th General Assembly, are division heads who are to be ap- pointed by the department director under Section 1 . 6(6) of S . B. No. l, and therefore such appointments come under the exemption of sub- section 1(1) of Section 36 . 030, H.B . No . 8, First Extraordinary Ses- sion, 77th General Assembly , and are not covered by provisions of the merit system law, subject , of course , to Article IV, Section 19 , Constitution of Missouri. February 5, 1975 Mr. Mark Edelman Deputy Commissioner of Administration Room 123 , State Capitol Building Jefferson City , Missouri 65101 Dear Mr . Edelman: OPINION NO . 37 F 1 LE 0 37 This opinion is in response to your question asking whether the exemption from the merit system provisions relating to heads of divisions of service includes heads of divisions of service es- tablished by department directors , or only applies to heads of di- visions of service that are explicitly provided for by statute . Subsection 1(1) of Section 36 . 030 (H . C.S . H.B . No. 8 , Fir st Extraordinary Session , 77th General Assembly) , which contains ex- emptions from the state merit system, provides in part as follows: " ... the following offices and positions . .. are not subject to this law [merit system] and may be filled without regard to its provisions : (l) Other provisions of the law to the contrary notwithstanding , members of boards and commissions and heads of d i visions of service having specified terms of office or required by law to be appointed by the gov- e r nor or by the director of a department of the executive branch of government , except the personnel director ; " (Emphasis added) Mr. Ma r k Edelman Your question is simply t h e mean i ng of the provision in Sec- t ion 36.030 e xcepting " . he ads o f divisions of s e rvice . r equire d by law to be appointed . . . by the director of a deport- me nt ... " It is obvious, of cour se , that i f there i s a statute whic h c r eates a division within a department and directs that the divi s ion he ad be appointed by the director of the departme nt, s uch appointment i s exempt from the operation of the merit system law . Your question is whether this also applies to directors o f divi- sions which a re created by heads of de partments as authorize d by Section 1.6(2) of the "Omnibus Stat e Re organization Act of 1974 ," C.C.S . H.C.S . S.C . S . S . B. No. 1, First Extraordinary Session, 77th Ge ne ral Assembly, known hereafter as S .B. No. 1. In such provi- sion, the head of each department is authorized to establish the inte rnal organization of the department and in doing so shall de- velop a departmental plan to be approved by the Governor in accor- dance with the transfer by type provided in S.B . No. 1. This plan as approved is then filed with the Secretary of State and with the Commissioner of Administration and the Revisor of Statutes. Au- thority is given for the organization of the department into divi- sions, and therefore for the creation of divisions within the de- partment. In s uc h s ituations, Section 1.6(6) of S.B. No . 1 provides i n part: " .. Subject to the provisions of chap- t e r 36 , . RSMo, where they apply , the de- partment director shall appoint all divi- s i o n heads unless otherwise provided in thi s act and such division heads and the deputy director of the department shall serve at the pleasure of the director of the department or unless otherwise pro- vided by this act." It is our opinion that al l division heads provided either by statute or in the departmental plan are then to be appointed by the director of the department, unl ess specific provisions in S.B. No. 1 provide for a different manner of appointment for any specific division head. Accordingly, it is our view that such division directors are those directors " • .. required by law to be appointed ... by the director of a department ... " under subsection 1(1) of Section 36 . 030 . In other words, the only re- quirement of this provision is that if there is a position of di- vision head, and if it is required by law that such appointment be made by the Governor or the director of the department , such posi- tion is then exempt from the merit system. Finally, we note that -2- Mr . Hark Edelman such general exemption provisions are, of course, subject to the provisions of Article IV , Section 19 , Constitution of Mi ssouri . CONCLUSION It is the opinion of this office that division heads who are provide d for in departmental plans pursuant to Section 1.6(2) of S . B. No. 1, First Extraordinary Session, 77th General Assembly , are division heads who are to be appointed by the department di- rector under Section 1.6(6) of S . B. No. 1 , and therefore such a p - pointments come under the exemption of subsection 1(1) of Se ction 36.030, H.B. No . 8, First Extraordinary Sessi on , 77th General As- sembly , and are not covered by provisions of the merit system law, subject, of course, to Article IV, Sect ion 19 , Constitution of Missouri. The foregoing opini on , which I hereby approve, was prepared by my assistant , Wal ter W. Nowotny , Jr. ~o; s ver~ly, ~ ~ *' J--<.,_re - 3- JOHN C. DANFORTH Attorney General