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09/20/77 DIRECTOR CIVIL DEFENSE AGENCY AND OFFICE

September 20, 1977

DIRECTOR OF THE CIVIL DEFENSE AGENCY AND OFFICE OF EMERGENCY PREPAREDNESS
v.
CIVIL SERVICE COMMISSION & OTHERS *FN1



Suffolk. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 6, 1976. The case was reserved and reported by Kaplan, J.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Liacos, JJ.

SYLLABUS BY THE COURT

Civil Defense Agency. Civil Service. Governor. Statute, Construction.

The opinion of the court was delivered by: Kaplan

In a civil action commenced in 1976 by the director of the Civil Defense Agency against the Civil Service Commission and thirty permanent employees of the agency, this court held that the positions of such employees are under civil service, notwithstanding the provision of St. 1950, c. 639, § 2, that employees of the defense agency "shall not be subject to" the civil service laws; all that has occurred since enactment of St. 1950, c. 639, creating the agency, has effected a supersession of § 2 in substance, it appearing that Governors, by a series of executive orders, had placed offices and positions in the agency under civil service laws and rules, that the Legislature, by St. 1963, c. 807, made many positions in the agency permanent, and that within the agency administrative conduct conformed to civil service procedures. [404-410]

Under G. L. c. 31, § 46A, as appearing in St. 1959, c. 569, § 5, "the employment or compensation" of permanent employees of the Civil Defense Agency who were notified by its director on February 28, 1975, that their employment would terminate on March 28, 1975, was not "affected by action of the appointing authority" until the later date, and complaints filed by such employees with the Civil Service Commission on March 31, 1975, seeking reinstatement with back pay, were filed within the seven day period allowed by § 46A. [410-411]

Statute 1975, c. 684, § 2, item 0432-0001, and § 7, abolishing on its effective date, November 8, 1975, positions of thirty permanent employees of the Civil Defense Agency which had been purportedly terminated by its director on March 28, 1975, did not nullify proceedings by such employees before the Civil Service Commission under G. L. c. 31, § 46A, although the commission hearings had been completed on November 8, 1975, and its order restoring the employees to their positions without loss of compensation was not entered until November 19, 1975. [411-412]

On February 28, 1975, the director of the Civil Defense Agency and Office of Emergency Preparedness (hereafter the Agency) notified the thirty permanent Agency employees here involved that their employment would terminate on March 28, 1975. The reason assigned was that the general economic recession called for a reduction of force. On March 31, 1975, the employees filed complaints with the Civil Service Commission (Commission) under G. L. c. 31, § 46A, *fn2 seeking reinstatement with back pay, and alleging as cause (what is now virtually conceded in point of fact) that the director had failed to comply with G. L. c. 31, § 43 (a), in that he had not given the employees a hearing with respect to the basis for the termination. *fn3 In the proceedings before the Commission which followed, the director defended on the dual grounds that the positions had not been brought under the civil service system so that § 43 (a) was inapplicable; but if the positions were covered, then that the employees' complaints failed because they had not been filed within the time limit set by § 46A or for other reasons. The proceedings were divided into two corresponding parts, and the Commission, accepting the recommendations of the respective hearing officers who heard the parties, ruled first that the positions were covered, and then that the complaints should be allowed, and entered an order, dated November 19, 1975, restoring the employees to their positions without loss of compensation or other rights.

The director thereafter commenced the present action in the Supreme Judicial Court for the county of Suffolk joining the Commission and the employees as defendants. He prays a declaration and a vacation of the Commission's order on either of the grounds he had taken, or on another not argued to the Commission, namely, that on November 8, 1975, the Legislature by budget legislation, St. 1975, c. 684, § 2, item 0432-0001, and § 7, *fn4 had abolished a number of Agency positions, including the thirty in question, thereby -- so the director contends -- rendering "moot" the proceedings before the Commission and invalidating its order. The case is here on reservation and report, without decision, of a single Justice of this court. We shall draw on the record, consisting of the pleadings and a statement of agreed facts with numerous annexes, as becomes appropriate to the issues discussed below.

1. Were the positions under the civil service? The situation is exceptional, and the question is a close one, but we think the answer is yes.

Statute 1950, c. 639, "An Act to provide for the safety of the commonwealth during the existence of an emergency resulting from disaster or from hostile action," created the Agency as one of the instruments to be used by the Governor in preparing for and meeting such exigencies. We note three important features of the act. First, evidently the act was conceived originally as a response to a temporary or passing situation, as indicated by the fact that it was to run only to July 1, 1952, and might be terminated sooner by resolution of the House and Senate acting concurrently (§ 22). (The specific date was changed to July 1, 1953, by St. 1952, c. 269; and by St. 1953, c. 491, that date was removed and the act given indefinite extension subject to joint resolution.) Second, as befitted its volatile and perilous mission, the act delegated to the Governor, as head of the executive branch, very extensive and highly flexible powers both in preparing for and meeting an emergency. Third, the act anticipated and made possible a close relationship between the State and Federal governments in the field of civil defense.

In keeping with the original temporary conception, § 2 of the act provided, with respect to the Agency, that its director, within the limits of amounts appropriated, might appoint such experts, clerks, and other assistants as the work of the Agency required, and that "uch employees shall not be subject to chapter thirty-one of the General Laws [civil service]." The quoted provision has not been superseded in terms by later legislation of the General Court. *fn5 The question is whether all that has occurred since the enactment, including not only a realization of the more durable character of the Agency and the civil defense program generally, but also action by the Governor under other provisions of the statute and the adoption of adjacent legislation by the General Court, has effected a supersession in substance.

Among the powers delegated to the Governor was that expressed in § 15 of the act, which stated in part: "Whenever the federal government . . . shall offer to the commonwealth . . . services, equipment, supplies, materials or funds by way of gift, grant or loan, for purposes of civil defense, the commonwealth, acting through the governor . . . may accept such offer, and upon acceptance the governor . . . may authorize any officer of the commonwealth . . . to receive such services, equipment, supplies, materials or funds on behalf of the commonwealth . . . and subject to the terms of the offer and the rules and regulations, if any, of the agency making the offer." Occasion for the use of § 15 arose in 1960 when the President, acting through the Office of Civil and Defense Mobilization in the Executive Office of the President, offered $200,000 to the Commonwealth for civil defense purposes for the balance of the fiscal year to end on June 30, 1961. *fn6 The offer was conditioned on the placing of positions in the civil defense organization of the Commonwealth on a personnel merit basis *fn7 by January 1, 1961. Accordingly the Governor on December 7, 1960, issued Executive Order No. 36 which stated in par. 1: "Notwithstanding the provisions of section two of Chapter 639 of the Acts of 1950, as amended, all offices and positions in the . . . , excepting the Director, shall, on January 1, 1961, become subject to the Civil Service laws and rules." (Provision was also made for extending civil service to positions in the local organizations for civil defense. *fn8) Considering the maturity of the Agency and of the whole effort, this was not a drastic proposition. The preamble of the Order referred to § 15 and to other statutory provisions for cooperation of the Commonwealth, through the Governor, with the Federal government, *fn9 as well as to the comprehensive gubernatorial authority vested by the statute over the civil defense program. *fn10

Although asserting and buttressing its own legality, the Order indicated frankly and understandably a preference for the adoption of legislation fully to achieve the purpose. As the reason for issuing an Order, the preamble mentioned the virtual impossibility of securing legislative action by January 1, 1961; and the Order, which ran to the end of the fiscal year, stated that it was to terminate at any earlier date on which legislation should be adopted confirming the Order or otherwise establishing the civil service status. In fact there was activity in the Legislature on the subject during 1960-1962, but it petered out for no particular reason that can be derived with any assurance from the legislative record. *fn11 Therefore, in order to continue to qualify the Commonwealth for matching Federal funds (see ...


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