STATE ex rel. FONS A. HATHAWAY v. BOYCE WILLIAMS, M. J. FOLLEY and W. R. RITZAUR, as members of the Florida Industrial Commission, 149 Fla. 48

TERRELL, J.: On February 26, 1941, petitioner was advised by the Governor that his services as Director of the Florida State Employment Service would be “terminated on March 14, 1941, because of inefficient operation of the service as a whole.” A detailed specification of the grounds for termination was included. Petitioner appealed to the Merit System Council where he was given a formal trial on the grounds for terminating his services. This trial resulted in a recommendation that the dismissal of petitioner as Director of the Florida State Employment Service be sustained.

On appeal to the Florida Industrial Commission, the judgment of the Merit System Council was affirmed. The judgment of the Florida Industrial Commission affirming the judgment of the Merit System Council is brought here for review by certiorari. A review of this judgment necessitates an

interpretation of pertinent provisions of the Florida Unemployment Compensation Law,

Chapter 18402, Acts of 1937. The purpose of said act was to relieve involuntary unemployment, to declare the policy of the State with reference to unemployment, to provide a state agency to cooperate with the Federal Government in the administration of the Wagner-Peyser Act, and to receive the benefits of the latter Act. The Wagner-Peyser Act provides for the creation of a national employment system and extends aid and cooperation to the states in the promotion of such a system. To make the provisions of the Wagner-Peyser Act available,

Section Four requires the state to formally accept its provisions and to provide a state agency clothed with power to cooperate with the United States Employment Service.

Section Eight requires such state agency to submit to the Director of the United States Employment Service detailed plans for effecting the purposes of the act and such plans will not be approved until shown to be adequate for that purpose.

Section Nine requires the state agency to make reports regularly concerning its operation and makes it the duty of the Director to keep informed as to whether the state is administering the act in accordance with the rules and regulations and the standard of efficiency prescribed by the Director.

Section Thirteen of the Florida Unemployment Compensation Law enacts that the provisions of the Wagner-Peyser Act “are hereby accepted by this State, in conformity with

Section 4 of said Act, and this State will observe and comply with the requirements thereof. The Florida Industrial Commission is hereby designated and constituted the agency of this State for the purposes of said Act.”

Section Eleven of the Florida Unemployment Compensation Law provides for the creation in the Florida Industrial Commission of two coordinate divisions, one to be the Florida State Employment Service which shall be administered by a full time salaried Director.

Section Eleven also provides: “The Governor shall appoint the directors of the Unemployment Compensation Division of the Florida State Employment Service. Such officers shall hold office at the will of the Governor. ...”

Section 12 D, Florida Unemployment Compensation Law is as follows: “The Commission shall classify positions under this Act and shall establish salary schedules and minimum personnel standards for the positions so classified. It shall provide for the holding of examinations to determine the qualifications of applicants for the positions so classified, and except for temporary appointments of not to exceed six months in duration, such personnel shall be appointed on the basis of efficiency and fitness as determined in such examinations.

The Commission shall establish and enforce fair and reasonable regulations for appointments, promotions, and demotions based upon ratings of efficiency and fitness and for termination for cause.” The record discloses that prior to December, 1938, there had been friction between the Florida Industrial Commission and the United States Employment Service with reference' to the administration of the unemployment compensation ■ laws.

The differences were reconciled and it was agreed that on acceptance of the Wagner-Peyser Act, a Director of the Florida State Employment Service would -be appointed under the merit system pursuant to

Section 12 D as quoted. The petitioner offered himself for and took all six examinations offered and was high man in the examination for Director, to which position he was appointed by the Governor who was party to the agreement.

In April, 1940, in order to comply with amendments to the Federal Social Security Act, the Florida Industrial Commission promulgated Regulation Number 6, as follows: “In order to assure an effective and economical administration of the Unemployment compensation Law, and provide equal opportunity for all qualified persons to compete for positions in the Unemployment Compensation Division, the Employment Service Division and Staff Departments, the Florida Industrial Commission had adopted the merit principle of personnel administration as provided for in

Section 12 D of the Florida Unemployment Compensation Law. . . . “It will be the policy of the Florida Industrial Commission to make possible a career in the service and by making promotions based on efficient work and providing tenure in office for those who give satisfactory performance. “This Regulation shall apply to all personnel of the Unemployment Compensation Division, the Employment Service Division and the Staff Departments responsible for the administration of the Florida Unemployment Compensation Law of the Florida Industrial Commission and appointments shall be made in conformity with this Regulation except the exempt positions as defined in

Article I, paragraph 7 of this Regulation.” Paragraph Seven of

Article One of the Regulation defines exempt positions to be Chairman and members of the Florida Industrial Commission, members of the Board of Review, members of the Merit System Council, all personnel of the Workman’s Compensation Division, and Confidential Secretary of the Florida Industrial Commission. The Director of the Florida State Employment Service is not included in this list but was included in the classified service and appointed under the merit system created by Regulation Six, pursuant to

Section 12 D. It is further shown that he completed his probationary period as provided by the merit system and his tenure became permanent or “during good behavior and the satisfactory performance of his duties as recorded by his service rating” subject to removal for cause. It will thus be seen that

Section 11 and 12 D are in apparent conflict in so far as they provide for the appointment of the Director of the Florida Employment Service. Both provisions should be construed to harmonize and be given a field of operation if possible. The declared policy of the Act was to improve the personnel efficiency by making appointments under the merit system and thereby encourage efficient and faithful service. Such was the policy of the United States Employment Service with which the State Employment Service was required to cooperate.

The essential question with which we are confronted may be stated as follows: Is the appointment and tenure of petitioner as Director of the Florida State Employment Service subject to the “will of the Governor” or was it made under the merit system and now subject to termination only for cause, he having completed his probationary period? If the Florida State Employment Service unconnected with the Wagner-Peyser Act was all that was involved, the question would be simple and might be answered by holding that the appointment and tenure were subject to the will of the Governor.

But we are confronted instead with a pact on the part of the Federal Government under the Wagner-Peyser Act and the State Government under the Florida Unemployment Compensation Law. Whether petitioner holds a job or an office is not material at this time. Our view is that he holds a job since he is subject at all times to the supervision and direction of the Florida Industrial Commission. Both sovereignties are committed to the merit system as a means of naming personnel to the Workman’s Compensation Division other than the exceptions enumerated.

We have heretofore pointed out the circumstances under which the United States Employment Service exacted and the Florida Industrial Commission agreed that the Director of the Florida State Employment Service would be appointed under the merit system. The Governor at that time was party to this agreement, had knowledge of the provisions of

Section Eleven and Twelve as here quoted but acted pursuant to the latter and named petitioner because he secured the highest mark in the examinations held under the merit system. When this was done and petitioner completed his probationary period as provided under the merit system, we think his tenure became permanent, subject to removal for cause.

We think this was implicit and explicit in the agreement between the State and Federal governments whereby the State accepted the provisions of the Wagner-Peyser Act and in doing so gave the Director of the United States Employment Service carte blanche to determine when it had provided adequate facilities for effecting the purposes of the Act.

The record further discloses that for many years 1939 and 1940, the Federal Government gave expression to its good faith in its pact with the State by making available several hundred thousand dollars per year for the support of the service while for the same period, the State made available $35,000 per year. We think both sections of the statute may be construed to operate and give effect to the good faith of the State in the transaction.

That is to say, prior to the completion of the probationary period, the Governor may appoint the Director of the Florida State Employment Service from the list of eligibles under the merit system and cut off his tenure at will, but after the probationary period is completed and he is approved for permanent tenure, he is subject to removal for cause only.

The letters of February 26 and March 13, 1941, notifying petitioner of the termination of his tenure show clearly that such was the understanding of the Governor as they recite that the termination was for “inefficient operation of the service as a whole” followed by a list of specifications. Thus, in his letter of March 13th, the Governor said: “My letter of February 26th gave you fifteen days notice of this action with specified reasons therefor in writing by the regulations of the Merit System.”

Article Thirteen of Regulation Six provides for appeal from the order of termination or suspension to the Merit System Council and thence .to Florida Industrial Commission. Before the Merit Council, he may have evidence and counsel in his behalf. He is given the full benefit of trial and to warrant removal there must be competent legal evidence to prove the charges against him. The Merit System Council and the Florida Industrial Commission took jurisdiction of petitioner’s appeal and thereby recognized his appointment and tenure under the merit system.

The test of the Governor’s power to remove for cause is not left in doubt but is stated in Regulation 6, Amended, promulgated by the Florida Industrial Commission by virtue of the Florida Unemployment Compensation Law which states it to be failure in “good behavior and the satisfactory performance of his duties as recorded by his service rating.” The charges in this case go to failure in the satisfactory performance of his duties; his behavior is not brought in question. Such charges should be specific and definite warranting removal under the test.

The evidence as a whole must show such an unsatisfactory performance of duty as the law and a sound public opinion approve. The Merit System Council made no finding of fact but stated its conclusion' that the dismissal of petitioner as Director of the Florida State Employment Service was for cause within the meaning of Regulation 6 as amended. The Florida Industrial Commission merely affirmed this action. We find little or no legal evidence to support the order of the Florida Industrial Commission.

It tends to show that a few incompetents were employed in some of the local offices, that the petitioner was not always cooperative, and that he appointed his daughter to a position over another of higher rating, but she was shown to be competent and being so, that is far from overcoming his service rating. We are therefore driven to the conclusion that an erroneous rule of law was applied to the evidence or that its legal effect was misconceived.

The Merit System Council is clothed with the important duty of trying impartially the issue of whether or not petitioner performed his duty as recorded by his service rating. A reading of the statute can leave no doubt of this and that is the sole guide that we or they have to follow. It would be difficult to set up a merit system in more comprehensive terms and while employees under it may be removed for cause, it accords them a fair trial to decide this point.

Article Fifteen of Regulation Six requires that the Director’s service rating be made every six months by the personnel officer in consultation with the appointing authority. It is based on the quality and quantity of work performed and is required to be made the basis for salaries, promotions, demotions, and suspensions. The personnel officer certified petitioner’s service rating to be 100 per cent in January, 1941. We find no evidence that tends to overcome this rating or even to challenge it. Respondents ignore the provision of

Section 12 D and all that was done under it and rest the case primarily on the part of

Section Eleven making the appointment of petitioner at the will of the Governor. This contention sets at naught every known rule of' statutory construction. It also abandons the theory on which petitioner was tried and notified of his removal. We think both provisions of the act can be made to operate; the respondents proceeeded on that theory and failed to sustain their position. It is perfectly competent for the legislature to create a position and provide for a limited or unlimited appointment. We think

Section 12 D is nothing more than a limitation on

Section Eleven. The Governor at the time so construed it. It is the only way to give effect to both sections and is not an unreasonable

interpretation. It accords with the policy of reviewing suspensions by the Senate before they become final. On the question of whether or not the finding of the Florida Industrial Commission can be reviewed on certiorari, little need be said. The termination of petitioner’s employment having been accomplished in the manner stated was quasi judicial in nature and subject to review on certiorari. Florida Motor Lines v. Railroad Commsision, 100 Fla. 538, 129 So. 876; West Flagler Amusement Company Inc. v. State Racing Commission, 122 Fla. 222, 165 So. 64.

The writ of certiorari is granted, the order of the Merit System Council as approved by the Florida Industrial Commission is without support in the record and is therefore quashed. BROWN, C. J., WHITFIELD, and THOMAS, JJ., concurs specially. BUFORD, ADAMS and CHAPMAN, JJ., concur.