OFFICIAL OPINION No. 4

OFFICIAL OPINION No. 4 Fish Commission-Game Commission-Public Utility Commission-Executive Board-Right to compel independent administrative commissions to accept civil service coverage. The Executive Board can impose civil service requirements on the hiring of employees by the Fish, Game and Public Utility Commissions, but cannot impose such standards in so far as they relate to the discharge of employees of these Commissions. Harrisburg, Pa., September 12, 1957. Honorable Andrew M. Bradley, Secretary, Executive Board, Com- monwealth of Pennsylvania, Harrisburg, Pennsylvania. Sir: You have requested an opinion as to whether the Fish Com- mission, the Game Commission and the Public Utility Commission could be compelled to accept Executive Board civil service coverage, that is, whether the Executive Board could compel these three Com- missions to enter into contracts with the Civil Service Commission whereoy this latter agency would administer the procedures involved in the employment and discharge of employees in accordance with civil service standards. Because the employment and discharge as- pects of the problem are controlled by different factors, we will dis- cuss them here separately. On the question of whether the Executive Board has power over the three named Commissions to regulate the hiring of employees, we find that the employment of game protectors and regular employees of the Game Commission is controlled by the Game Law, the Act of 48 OPINIONS OF THE ATTORNEY GENERAL June 3, 1937, P. L. 1225, § 206, 34 P. S. § 1311.206. This act provides that the Commission shall appoint such number of competent men as, in its opinion, may be needed to discharge properly the duties devolving upon said Commission. The act also defines the powers and duties of those game protectors. In addition, the act states that the Com- mission shall also appoint such employees and stenographers as may be deemed necessary. An almost identical provision, pertaining to Fish Commission em- ployees, is found in The Administrative Code of 1929, the Act of April 9, 1929, P. L. 177, § 2702, as amended, 71 P. S. § 692. The members of the Fish Commission are given the power to appoint competent employees. In regard to the employees of the Public Utility Commission, the Act of March 31, 1937, P. L. 160 § 6 (b), 66 P. S. § 457, states that employees of this Commission are appointed by the Commission with the approval of the Governor. Although the Legislature has specifically directed that each of the three Commissions shall be the appointing authority for its own em- ployees, the question arises as to whether the Executive Board may impose conditions or limitations upon such hiring. The Administrative Code of 1929, the Act of April 9, 1929, P. L. 177, § 709, as amended, 71 P. S. § 249, states that the Executive Board shall have the power: "(a) To standardize the qualifications for employment, and all titles, salaries, and wages, of persons employed by the ad- ministrative departments, boards, and commissions * * *." On its face this provision would unquestionably seem to give the Executive Board the power to standardize the qualifications for em- ployment of all employees of all administrative commissions. The question arises as to whether the Legislature's use of the word "com- missions" should be restricted to mean only "departmental adminis- trative commissions" as defined in § 202 of The Administrative Code of 1929, supra, 71 P. S. § 62, to the exclusion of "independent ad- ministrative commissions,'' such as the Fish, Game and Public Utility Commissions (Act of April 9, 1929, § 201, supra, 71 P. S. § 61). Any possible misgiving on this subject disappears when we examine subsections (b), (e) and (g) of § 709 of The Administrative Code of 1929, which is quoted, in part, above. In these latter subsections the Legislature specifically used the term "independent administrative commissions." While an argument may be made that the Legislature's OPINIONS OF THE ATTORNEY GENERAL 49 specific addition of the adjective "independent" in subsections (b), (e) and (g) limits Executive Board powers over independent com- missions to only those particular subsections, we feel that this would be a strained and improper interpretation. It would necessitate read- ing into subsection (a) of § 709 the adjective "departmental" prior to the word "commissions." Where the Legislature has desired to distinguish departmental com- missions from independent commissions it has done so explicitly and not by implication. For example, in § 223 of The Administrative Code, as amended by the Act of April 4, 1956, P. L. (1955) 1387, § 1, 71 P. S. § 83, it is provided: "Each employe of an administrative department, of an independent administrative board or commission, and of a de- partmental administrative board or commission, shall be paid his regular salary every other week." (Emphasis supplied) See also §§ 220 and 222 of The Administrative Code of 1929, supra, for similar language. Still another reenforcing factor appears from an examination of § 214 of The Administrative Code, which was amended as recently as 1953, the Act of August 21, 1953, P. L. 1329, § 1. Here it is stated, inter alia, that employees appointed by heads of independent adminis- trative boards and commissions shall receive compensation which is subject to approval by the Governor and after the Executive Board has fixed the standard compensation for any kind, grade or class of service or employment, the compensation of all persons in that kind, grade or class shall be fixed in accordance with such standard. It is our view that where the word "commissions" stands alone, it means all commissions, both departmental and independent. On this basis it is clear that the Executive Board does have the power to standardize the qualifications for employment of all commissions and thereby could control the hiring of employees by the Fish, Game and Public Utility Commissions. This power to standardize qualifications encompasses the power to direct the three Commissions in question to enter into contracts with the Civil Service Commission under which contracts the Civil Service Commission could set proper qualifications of employment, i.e., designate competent persons. After these standards are set the three _Commissions in question would then exercise their power to appoint one or more of these competent persons. We parenthetically note that, since the Governor must approve the appointment of Public Utility Commission employees, this approval 50 OPINIONS OF THE ATTORNEY GENERAL could be conditioned upon the employee's qualification under civil service standards. Turning to the question of the Executive Board's power to require the Fish, Game and Public Utility Commissions to enter into con- tracts with the Civil Service Commission, which contracts would im- pose limitations on their discharge powers, we find that the Game Law, supra, provides that all employees of the Game Commission shall be removable at the discretion of the Game Commissioners. The same discretion is placed in the Fish Commissioners in regard to employees of the Fish Commission by the Act of April 9, 1929, P. L. 177, § 2702, supra. As to the Public Utility Commission, there appears to be no clear- cut legislative mandate setting forth, in detail, who shall discharge the employees of the Commission. There is one provision in the Act of March 31, 1937, P. L. 160, § 13(c), 66 P. S. § 464. There it is stated that former employees of the Public Service Commission (the present Commission's predecessor) shall hold their positions until removed or appointed to other positions by the Commission. This clause is obviously of limited scope, however. Unlike the question of hiring employees there is no specific legis- lative power vested in the Executive Board to control, in any way, the discharge of employees by these three Commissions. It has been held by the Supreme Court of Pennsylvania in Seltzer v. Fertig, 237 Pa. 514, 85 Atl. 869 (1921), that the Legislature could control the method of appointing and discharge of employees of the Commonwealth who enjoy a status lower than appointed officers as this term is used in Article VI, Section 4, of the Constitution of the Commonwealth. We are, of course, here dealing with such subordinate employees. In view of the holding in the Seltzer case, supra, it is clear that the Legislature has designated the method of discharge of Fish and Game Commission employees. It has stated that they will be discharged at the discretion of their respective commissioners. In the absence of any specific grant of power to the Executive Board to alter this pattern, it remains clear that the Executive Board could not compel the Fish and Game Commissions to accept Executive Board civil service in relation to the discharge of their employees. Although the Legislature has not been clear in defining who shall have the power to remove Public Utility Commission employees, under the common law all employees of the Commonwealth are subject to removal at the pleasure of the appointing power, in this case the OPINIONS OF THE ATTORNEY GENERAL 51 Public Utility Commission, unless there is legislative provision to the contrary: Ruch v. Wilhelm, 352 Pa. 586, 43 A. 2d 894 (1945). The Legislature has not granted power to the Executive Board to place any condition on such removals. The Legislature's failure to extend to the Executive Board any control over the discharge of this Com- mission's employees, leads us to the conclusion that the Executive Board could not compel the Public Utility Commission to accept Executive civil service in regard to the discharge of the Commission's employees. It is, therefore, our opinion and you are accordingly advised that as to the Fish, Game and Public Utility Commissions, (1) the Execu- tive Board can impose civil service requirements on the hiring of em- ployees, and (2) the Board cannot impose such standards on these Commissions in so far as they relate to the discharge of employees. Yours very truly, DEPARTMENT OF JUSTICE, JEROME H. GERBER, Deputy Attorney General. THOMAS D. McBRIDE, Attorney General.