Can a Wyoming elected official like the Superintendent of Public Instruction hire an at-will employee to fill a position that was previously held by a permanent employee, without first getting approval from the Department of Administration & Information?

Plain-English summary

Wyoming Superintendent of Public Instruction Cindy Hill asked the AG whether she could hire an at-will employee to fill a position that had been held by a permanent employee without seeking approval from the Department of Administration & Information (DOA). She believed she could, given that the Wyoming Department of Education is "an agency headed by an elected official."

AG Gregory Phillips disagreed. The Wyoming Constitution at art. 4, § 1 vests executive power in the Governor. Article 4, § 12 says the powers of the Secretary of State, Auditor, Treasurer, and Superintendent of Public Instruction "shall be as prescribed by law", meaning the Legislature defines what those four other elected officials do. Phillips reviewed every statute prescribing the powers of those four officials and found that none gave any of them authority to determine the employment status (at-will or permanent) of positions in their offices.

In contrast, the Legislature gave the Governor, acting through DOA, broad authority over executive personnel:

• Wyo. Stat. Ann. § 9-2-1002(b) makes DOA an arm of the Governor's executive function.
• Wyo. Stat. Ann. § 9-2-1002(c) directs the Act to be construed to provide the Governor "a more coordinated and responsive system of management of the executive branch."
• Wyo. Stat. Ann. § 9-2-1022(a) gives the DOA Human Resources Division duties including establishing the classification plan, the compensation plan, approving agency personnel changes, and setting personnel standards.

The State Personnel Rules, dated June 1, 2010, applied to all positions in the executive branch except the University of Wyoming, the Community College Commission's executive director, district attorneys, and the five state elected officials themselves. They include a rule (Chapter 6, Section 9) saying:

An at-will appointment may be statutorily required or it may be requested by an agency head with appropriate written justification to and prior written approval of the Human Resources Administrator.

The Superintendent is the agency head of the Department of Education under Wyo. Stat. Ann. § 21-2-201, so the rule applied to her. Phillips traced the history of Wyoming's personnel statutes from 1919 to 2010 to show that the Legislature had repeatedly committed personnel administration to the Governor and DOA, never to other elected officials. The 1989 reorganization at Wyo. Stat. Ann. §§ 9-2-1701 through 1707 specifically declared certain positions at-will (deputies and administrators in the offices of the five elected officials, department directors, and division administrators) but left the broader question of which positions are at-will to DOA's classification system.

Phillips also explained why permanent employees have due process rights before discharge. State Personnel Rules listing causes for discipline and progressive discipline procedures function like an employment handbook under Mobil Coal Producing, Inc. v. Parks and Abell v. Dewey, creating a property interest protected by the Fourteenth Amendment. That interest is what makes the classification of a position as permanent vs. at-will important: a permanent employee can only be terminated for cause, while an at-will employee can be discharged for any or no reason.

The opinion was careful to note it took no position on whether at-will or permanent employment was a better policy. It only described the law as it stood.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Wyoming's constitutional executive structure differs from many states in that the Governor holds the only general executive grant (art. 4, § 1), while the other four elected officials get only such powers as are "prescribed by law" (art. 4, § 12). That structural difference does the heavy lifting in the opinion.

The history of Wyoming's personnel laws walks from a 1919 Board of State Supplies framework, through a 1933 reorganization, a 1957 Personnel Administration Act creating the Wyoming Personnel Commission, a 1971 reorganization that created the Department of Administration & Fiscal Control, a 1991 renaming to the Department of Administration & Information, and a 1997 renaming of the Personnel Management Division as the Human Resources Division. Through each iteration the Legislature gave the Governor (and his department) responsibility for personnel classification, compensation, and approval of agency personnel changes.

The 1989 reorganization at Wyo. Stat. Ann. §§ 9-2-1701 through 1707 explicitly declared certain positions at-will: deputies and administrators in elected officials' offices serve at the elected official's pleasure; department directors serve at the Governor's pleasure; and division administrators serve at the department director's pleasure. A 2000 bill (S. File 58) tried to extend the at-will designation downward to program managers and was defeated. A 2011 statute directed DOA to study which positions at administrator/director/program-manager levels should be classified as at-will, again recognizing DOA as the relevant decisionmaker.

Wyo. Stat. Ann. § 9-2-1022(a) lays out DOA Human Resources Division duties: establish a classification plan; establish a compensation plan; approve all agencies' changes related to personnel; establish personnel standards governing leave, work hours, attendance, grievances, and terminations; and promulgate rules. Chapter 6, Section 9 of the personnel rules specifically requires written justification and prior written approval of the Human Resources Administrator for an at-will appointment.

Common questions

Q: Could the Superintendent of Public Instruction unilaterally make a position at-will instead of permanent?
A: Under the 2011 reading, no. The classification of positions as at-will or permanent is committed to the DOA Human Resources Division, and the personnel rules require agency heads to provide written justification and get written approval before making an at-will appointment.

Q: What's the legal stake in whether a position is at-will or permanent?
A: Permanent employees in Wyoming have a property interest in continued employment, protected by Fourteenth Amendment due process under Cleveland Bd. of Educ. v. Loudermill and Abell v. Dewey. They can only be discharged for cause and get progressive discipline rights. At-will employees can be discharged for any or no reason, subject to the limits of probationary periods.

Q: Are deputies and administrators in elected offices already at-will?
A: Yes. Wyo. Stat. Ann. § 9-2-1704(e) declares that deputies and administrators in the offices of the five elected officials serve at the elected official's pleasure. The opinion was about positions below that statutory at-will band.

Q: What happens if an agency head bypasses DOA and just makes an at-will appointment?
A: The opinion did not enumerate consequences, but the rule has the force of law under Doidge v. State Bd. of Charities & Reform, and a court would defer to DOA's interpretation unless clearly erroneous. An employee aggrieved by a status change would have a stronger claim under permanent-employee due process if the change was not properly authorized.

Q: Did the Superintendent's argument that the Department of Education is "an agency headed by an elected official" change the answer?
A: No. The opinion treated her as the agency head for purposes of the personnel rules, which made the rules apply to her decisions about her department's positions. The rules expressly require written justification and HRA approval for an at-will appointment.

Q: Were the four other elected state officials (Secretary of State, Auditor, Treasurer, Superintendent) covered the same way?
A: Yes. The opinion ran through each of them and concluded none have constitutional or statutory authority to determine the employment status of positions in their offices. The Governor alone, acting through DOA, has that authority.

Citations and references

Wyoming Constitution:
- Wyo. Const. art. 4, § 1
- Wyo. Const. art. 4, § 12

Wyoming statutes:
- Wyo. Stat. Ann. §§ 9-1-301 through 9-1-307
- Wyo. Stat. Ann. §§ 9-1-401 through 9-1-417
- Wyo. Stat. Ann. § 9-2-1002(b), (c)
- Wyo. Stat. Ann. § 9-2-1022(a)
- Wyo. Stat. Ann. §§ 9-2-1701 through 9-2-1707
- Wyo. Stat. Ann. § 9-2-1704(e)
- Wyo. Stat. Ann. § 9-2-1706(a)-(c)
- Wyo. Stat. Ann. § 21-2-201
- Wyo. Stat. Ann. §§ 21-2-202, 21-2-203

State Personnel Rules:
- Department of Administration & Information, Human Resources Division, Personnel Rules (June 1, 2010)
- Chapter 6, Section 9 (at-will appointments)

Wyoming cases:
- Brodie v. Gen. Chem. Corp., 934 P.2d 1263 (Wyo. 1997)
- McDonald v. Mobil Coal Producing, Inc., 820 P.2d 986 (Wyo. 1991)
- Mobil Coal Producing, Inc. v. Parks, 704 P.2d 702 (Wyo. 1985)
- Abell v. Dewey, 847 P.2d 36 (Wyo. 1993)
- Glover v. State, 860 P.2d 1169 (Wyo. 1993)
- Doidge v. State Bd. of Charities & Reform, 789 P.2d 880 (Wyo. 1990)
- Matter of Lyles, 957 P.2d 843 (Wyo. 1998)

Federal cases:
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)

Source

• Landing page: https://ag.wyo.gov/formal-opinions
• Original PDF: https://drive.google.com/file/d/0B-uookG6TajHcVhSUV9kR2Noems/view?resourcekey=0-NVO2ZLjGS2Mv4jZM19cnDg

Original opinion text

Office of the Attorney General

Governor Matthew H. Mead
Attorney General Gregory A. Phillips
Chief Deputy Attorney General Peter K. Michael

Administration
123 State Capitol
Cheyenne, Wyoming 82002
307-777-7841 Telephone
307-777-6869 Fax

August 25, 2011

FORMAL OPINION 2011-002

Ms. Cindy Hill
Superintendent of Public Instruction
Hathaway Building, 2nd Floor
2300 Capitol Avenue
Cheyenne, Wyoming 82002-0050

RE: Opinion Request

Dear Superintendent Hill:

In a letter dated July 5, 2011, you requested an Attorney General opinion on the following question:

Does state law require that an elected official receive approval from the Department of Administration and Information before hiring an employee "at will" to fill a position that was previously held by a "permanent" employee?

Short Answer

Yes. Under Wyoming's Constitution, the executive power vests in a governor. Knowing this, the Legislature has enacted statutes recognizing broad gubernatorial powers over executive branch personnel. Acting through the Department of Administration and Information and its Human Resources Division, the Governor has statutory power to determine the employment status of executive branch positions (at-will or permanent). The Legislature has also assumed a role, defining certain high-level executive administrative positions as at-will.

Wyoming's other four elected State officials have numerous core governmental powers as prescribed by law. But nothing in their Constitutional or statutory grants of authority gives them power to decide the employment status of employees.

In addition, the State of Wyoming Personnel Rules (June 1, 2010) require that agency heads provide written justification to, and obtain approval from, the Human Resources Administrator before making an at-will appointment to a permanent position. The Superintendent of Public Instruction is the director of the Department of Education, making her its agency head under the personnel rules. Accordingly, the personnel rules specifically require that she get approval from the Human Resources Division before making any Department of Education position at-will.

While it is true that employment in Wyoming is presumed at-will, a different rule applies when employers promise certain rights, as has the State in its personnel rules. These rules list misconduct justifying discipline of permanent employees and require cause to dismiss them from employment. But before attaining permanent employee status, executive branch employees must successfully complete a year's probationary term during which they serve at-will.

Analysis

A. Wyoming Employment Law: General Principles

"Wyoming presumes that an implied contract of employment for an indefinite period is a contract for at-will employment and the employer may discharge for any or no reason." Brodie v. Gen. Chem. Corp., 934 P.2d 1263, 1265 (Wyo. 1997) (citation omitted). But, using an objective test, the Court looks to see whether an "employer has intended, either by words or conduct, to include job security as part of the implied employment contract." Id. at 1265-66 (citing McDonald v. Mobil Coal Producing, Inc., 820 P.2d 986, 990 (Wyo. 1991)). Promises of job security in employment handbooks effectively induce employees to continue employment. Mobil Coal Producing, Inc. v. Parks, 704 P.2d 702, 706-07 (Wyo. 1985). In exchange for offered job security, an employer receives consideration of an "orderly, cooperative and loyal workforce which the employer hoped its promise would evoke." Brodie, 934 P.2d at 1266.

An employee with a reasonable expectation of continued employment has a Fourteenth Amendment property right, which requires due process before the right may be deprived. Abell v. Dewey, 847 P.2d 36, 39 (Wyo. 1993) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985)), withdrawn, in part, on other grounds by Abell v. Dewey, 870 P.2d 363 (Wyo. 1994). Employment handbooks listing infractions subjecting an employee to discipline and providing progressive discipline can alter an at-will employment status. Abell, 847 P.2d at 40 (citing Parks, 704 P.2d at 706).

The State of Wyoming's Personnel Rules are "the equivalent of an employee handbook or manual." Abell, 847 P.2d at 41. Examining a pre-1994 version of the personnel rules, the Court saw that probationary employees could be dismissed only for "reasonable cause." Id. It further saw in the rules fourteen items of "cause" justifying discipline. Id. (quoting State of Wyoming Personnel Rules, Ch. XI, Sec. I (a)). Accordingly, the personnel rules give a reasonable expectation of continued employment (now only to permanent employees), creating a corresponding property right. Abell, 847 P.2d at 42. This "property interest in continued employment invokes a concomitant right to due process before deprivation." Id. at 42.

B. Applicable Wyoming Statutes and Personnel Rules

This opinion must answer who has the power to change a position from at-will status to probationary-permanent status. In your letter requesting this opinion, you contend that elected officials should not need approval from the Department of Administration and Information "before hiring an employee 'at-will' to fill a position that was previously held by a 'permanent' employee[.]" To decide who has power to make positions at-will or permanent, we need to examine the history of Wyoming personnel law and all bases for each contender's possible authority.

[The opinion continues with a detailed history of Wyoming personnel statutes from 1919 forward through the 1933 Board of State Supplies, the 1957 Personnel Administration Act and Wyoming Personnel Commission, the 1971 creation of the Department of Administration and Fiscal Control with its Personnel Division, the 1991 renaming to the Department of Administration and Information, the 1997 renaming of the Personnel Management Division as the Human Resources Division, and the 2006/2010 Human Resources Division personnel rules.]

B.2. The Governor Through the Department of Administration and Information, Human Resources Division

As the foregoing history shows, the Governor, through the department, largely controls the executive State employee system. At least in part, this is because "[t]he executive power shall be vested in a governor." Wyo. Const. art. 4, § 1. While the statutes never explicitly say that the Governor, acting through the department, sets at-will or permanent status for executive branch positions, the Legislature's language and actions reveal that its intent was to have the Governor and department do just that. In evaluating the statutory language below, we must be mindful that courts construe statutes as a whole, "giving effect to every word, clause, and sentence, and [they] construe together all parts of the statute in pari materia." Matter of Lyles, 957 P.2d 843, 846 (Wyo. 1998).

The Legislature revealed its intent when it stated that "[t]his Act shall be construed to provide the governor, through the department [of administration and information], with a more coordinated and responsive system of management of the executive branch of state government, and to preserve and protect the separation of powers mandated by article 2, section 1 of the Wyoming constitution." Wyo. Stat. § 9-2-1002(c) (2011).

Within the Act are the statutes governing executive branch State employees. Construing these statutes as directed by the Legislature, the Governor and department have latitude to find that a given employment status system might better provide a "coordinated and responsive system of management of the executive branch of state government." It could do so, in the Wyoming Supreme Court's earlier-quoted words, by obtaining an orderly, cooperative, and loyal workforce. Brodie, 934 P.2d at 1266.

The Legislature addressed the Governor and department's joint role in administering the executive branch, including its employees:

The department may assist the governor in discharging his duties as chief executive and administrative officer of the executive branch of government of the state of Wyoming. The governor through the department shall:

(i) Improve techniques used for management of state government;

(iv) Promote economy and efficiency in government; and

(v) Establish uniform standards of administration.

Wyo. Stat. § 9-2-1002(b) (2011).

Moreover, the Legislature imposed requirements on the Department of Administration and Information and its Human Resources Division. Broadly, it required that the division establish and administer a classification plan covering all agency employees into categories of positions "determined by similarity of duties, authority, responsibilities and other relevant factors of employment[,]" and that it establish a State compensation plan. Wyo. Stat. § 9-2-1022(a)(i), (ii) (2011).

More specifically, it required that the division "[a]pprove all agencies' changes related to personnel with respect to compensation, position classification, transfers, job titles, position specifications and leave time"; "establish personnel standards governing employee leave time, hours of work, attendance, grievances and terminations"; and promulgate reasonable rules on a variety of subjects, including (i) those necessary to administer the classification plan and compensation plan, (ii) those concerning discipline, grievances, and appeals, and (iii) those necessary to administer a program in which agencies may use at-will contract employees to meet programmatic needs. Wyo. Stat. § 9-2-1022(a)(viii), (ix), (xi)(A), (C), (F) (2011).

The most recent version of the various chapters of Wyoming Personnel Rules was compiled on June 1, 2010. These rules "apply to all positions and employees in the Executive Branch," except for those at the University of Wyoming, for the Executive Director of the Community College Commission, for district attorneys, and for the five State elected officials themselves. Dep't of Admin. & Info., Human Res. Div., Personnel Rules, ch. I, § 2 (2009). This means that the personnel rules apply to all executive employees, including those working for elected officials or departments they oversee (one being the Department of Education).

As shown, the Legislature has recognized that a governor has broad authority over executive branch employees. At least impliedly, the statutes and associated personnel rules give the Governor authority, through the department, to determine the employment status of most executive branch positions. The Legislature certainly did not create a permanent employment framework only to leave no one authorized to designate permanent positions.

For decades, the Department of Administration and Information and its Division of Human Resources (and their predecessors) have worked closely with governors to set the employment status of positions. The Legislature's intent is best seen by its acquiescence to this arrangement. Moreover, the Legislature has signaled its understanding that employment status applies universally to levels of executive positions, not leaving that to individual decisions of agency heads and elected officials. For instance, in 2011 the Legislature ordered the Department of Administration and Information to do a study examining what positions at different levels (e.g., administrator; board or commission director, executive secretary, and deputy director; program manager) might best be classified or identified as at-will. 2011 Wyo. Sess. Laws 435-36. Nowhere did it recognize any role in this process for agency heads or elected officials other than the Governor.

In 1989, the Legislature reorganized State government. 1989 Wyo. Sess. Laws 217-23; Wyo. Stat. §§ 9-2-1701 through 9-2-1707 (2011). In doing so, the Legislature itself declared certain positions at-will: deputies and administrators in the offices of the five elected officials serve at the elected officials' pleasure; directors of the newly-organized departments of government serve at the Governor's pleasure; and administrators of divisions within the departments serve at the department directors' pleasure. Wyo. Stat. §§ 9-2-1704(e), 9-2-1706(a)-(c) (2011). A year 2000 bill, Senate File 0058, illustrates its continued interest in the subject. There the Legislature debated and defeated a measure to apply an at-will rule downward to program managers.

B.3. Four Elected Officials: Secretary of State, Auditor, Treasurer, and Superintendent of Public Instruction

The Wyoming Constitution identifies the powers of the above four elected officials in these terms: "The powers and duties of the secretary of state, of state auditor, treasurer and superintendent of public instruction shall be as prescribed by law." Wyo. Const. art. 4, § 12.

The law prescribes to the Superintendent of Public Instruction "[t]he general supervision of the public schools" and names her as "the administrative head and chief executive officer of the department of education." Wyo. Stat. § 21-2-201 (2011). The statutes empower the Superintendent in many ways and also prescribe numerous duties. Wyo. Stat. §§ 21-2-202; 21-2-203 (2011). But nothing in these grants of authority includes a power to determine the employment status of positions.

Although the other State officials have not asserted a power overriding the Human Resource Division's to determine what positions are at-will or instead permanent, your request for an opinion asks too about their legal ability to define employment status. Accordingly, this opinion will also address the authority of each of these other three State officials.

The Secretary of State's powers and duties are prescribed at Wyo. Stat. §§ 9-1-301 through 9-1-307 (2011). The Treasurer's powers and duties are prescribed at Wyo. Stat. §§ 9-1-401, 9-1-409 through 9-1-417 (2011). The Auditor's powers and duties are prescribed at Wyo. Stat. §§ 9-1-401 through 9-1-408 (2011). As with the statutes prescribing the powers and duties of the State Superintendent, nothing in the statutes governing the other elected officials gives any of them a power to determine the employment status of positions within their respective offices.

B.4. The Superintendent of Public Instruction and the Department of Education

In your letter seeking an opinion, you cite Wyo. Stat. § 9-2-1704(a)(vi) to support your statement that "the Wyoming Department of Education is an agency headed by an elected official." By statute, you as the Superintendent of Public Instruction are "the administrative head and chief executive officer of the department of education." Wyo. Stat. § 21-2-201 (2011).

In 1999, the Human Resources Division adopted a rule clarifying how at-will appointments can occur:

Chapter 6, Section 9. At-Will Appointment

(a) An at-will appointment may be statutorily required or it may be requested by an agency head with appropriate written justification to and prior written approval of the Human Resources Administrator.

Dep't of Admin. & Info., Human Res. Div., Personnel Rules, Ch. 6, § 9 (1999). The personnel rules define "agency" to include a "department of the Executive Branch of government." Dep't of Admin. & Info., Human Res. Div. Personnel Rules, Definitions, App'x A, ¶ 2 (2009). They define "agency head" as "[t]he director of a State agency; the director may be responsible to a governing board, commission, council, or directly to the Governor." Id., ¶ 3. The rules do not define "director," so this opinion relies upon the statutes on government reorganization, which define "director" as "the administrative head of a department." Wyo. Stat. § 9-2-1703(a)(vi) (2011).

Accordingly, for purposes of the personnel rules, the Superintendent of Public Instruction is the "agency head" for the Department of Education. This means that the rules specifically require that you obtain approval from the Human Resources Administrator before making positions at-will. Of course, even employees hired for permanent positions must first successfully complete a year's probationary status, during which time they are at-will.

All necessary steps were taken to adopt chapter 6, section 9, of the personnel rules. On April 9, 2009, after delivery to the Attorney General's Office and the Legislative Service Office for their review, this personnel rule (together with some others) was provided to the Secretary of State's Office. On June 1, 2009, a public hearing was held. On July 27, 2009, the administrator of the Human Resources Division certified that the prerequisites were met, and on August 27, 2009, Governor Freudenthal certified the rules as being "within the scope of authority delegated to the adopting agency" and "appear[ing] to be within the scope of the legislative purpose of the statutory authority." Wyo. Sec'y of State Certification Page, Dep't of Admin. & Info., Human Res. Div., Doc. No. 7524-7532 (filed Sept. 1, 2009).

The rule found at chapter 6, section 9, is a reasonable one and necessary to "administer the classification plan." Wyo. Stat. § 9-2-1022(a)(xi) (2011). In its 2011 enactment, the Legislature used the term "classification" in terms of sorting what positions should be designated as at-will, including many positions presently permanent. 2011 Wyo. Sess. Laws 435. In dicta, the Supreme Court has done likewise. See Glover v. State, 860 P.2d 1169, 1173 n.4 (Wyo. 1993) ("Both parties represent that Glover was a permanent employee. For the purposes of this decision, we presume that Glover was a permanent employee, but we offer no opinion as to whether he was properly classified as such."). This interpretation of "classification" can be read consistently with Wyo. Stat. § 9-2-1022's direction to "classify[] positions into categories determined by similarity of duties, authority, responsibilities and other relevant factors of employment." Wyo. Stat. § 9-2-1022(a)(i) (2011).

Additionally, in evaluating the meaning and breadth of terms used in Wyo. Stat. § 9-2-1022, the Legislature's direction bears repeating: "This act shall be construed to provide the governor, through the department, with a more coordinated and responsive system of management of the executive branch of state government." Wyo. Stat. § 9-2-1002(c) (2011). This intent illuminates the meaning of statutory terms such as "position classifications" and "position specifications" and helps resolve that the authority to promulgate rules governing events such as "discipline, grievances and appeals" likely includes a power to determine who may be disciplined, may grieve, and may appeal. Wyo. Stat. § 9-2-1022 (a)(i), (viii), (xi)(C) (2011).

"[R]ules and regulations adopted pursuant to statutory authority have the force and effect of law." Doidge v. State Bd. of Charities & Reform, 789 P.2d 880, 883 (Wyo. 1990) (citations omitted). Courts "defer to an administrative agency's construction of its rules unless such construction is clearly erroneous or inconsistent with the plain meaning of the rules." Id. at 884 (citations omitted).

The entire structure of the personnel statutes and rules requires that someone set employment status for executive branch positions. Nothing in the Constitution or statutes gives this authority to any elected official other than the Governor. For decades, multiple governors, through their respective departments and personnel divisions, have set the status of executive positions, and all the while the Legislature has acquiesced.

Accordingly, for all reasons stated, this opinion concludes that the division acts within its authority by setting the employment status of executive branch positions and in requiring its approval before any executive position's status is changed from permanent to at-will. This opinion favors no particular employment status over another. Instead it merely advises on what it believes the law presently provides.

Sincerely,

Gregory A. Phillips
Attorney General