AS COMPRISING THE EXEMPT UNCLASSIFIED SERVICE. THIS HAS BEEN COMMONLY REFERRED TO BY PERSONNEL OFFICERS AS "THE CATALOG" AND MAY BE FOUND IN 74 O.S. 840.8 (1990). ALTHOUGH IT IS NOT A COMPLETE LISTING OF UNCLASSIFIED POSITIONS, IT IS VERY COMPREHENSIVE. THE LEGISLATURE ANNUALLY REVIEWS THIS LISTING AND HAS MADE MODIFICATIONS TO IT EACH YEAR.
THIS CATALOG INCLUDES, IN PART, WITHIN THE UNCLASSIFIED SERVICE THE FOLLOWING OFFICERS, POSITIONS AND PERSONNEL:
"6." PERSONS EMPLOYED IN A PROFESSIONAL OR SCIENTIFIC CAPACITY TO MAKE OR CONDUCT A TEMPORARY AND SPECIAL INQUIRY, INVESTIGATION, OR EXAMINATION ON BEHALF OF THE LEGISLATURE OR A COMMITTEE THEREOF OR BY AUTHORITY OF THE GOVERNOR. N (74 O.S. 840.8-6).
OVER THE YEARS, THE HIGHWAY SAFETY DIVISION HAS MADE NUMEROUS PERSONNEL APPOINTMENTS AUTHORIZED BY VARIOUS GOVERNORS PURSUANT TO THIS AUTHORITY. AN INQUIRY HAS BEEN MADE AS TO WHETHER PERSONNEL APPOINTED PURSUANT TO THIS AUTHORITY AND EMPLOYED ON JANUARY 3, 1991, WOULD BY OPERATION OF EXECUTIVE ORDER 91-1 BE PLACED UNDER THE MERIT SYSTEM. IN OTHER WORDS, MAY A GOVERNOR BY EXECUTIVE ORDER PLACE PERSONNEL POSITIONS UNDER THE MERIT SYSTEM NOTWITHSTANDING THE LEGISLATURE HAS STATUTORILY DESIGNATED SAID POSITION TO BE A PART OF THE EXEMPT UNCLASSIFIED SERVICE?
THE AUTHORITY OF A GOVERNOR TO PLACE "ANY AGENCY OR DEPARTMENT OF THE STATE GOVERNMENT, AND THE EMPLOYEES THEREOF, WITH EXEMPT POSITIONS AS STIPULATED BY SAID ORDER," WITHIN THE MERIT SYSTEM IS NOT A CONSTITUTIONAL POWER INHERENT TO THE GOVERNOR, RATHER IT HAS BEEN GRANTED TO HIM AS EXECUTIVE BY THE LEGISLATURE. (74 O.S. 840.3) SIMILARLY, THE POWER OF A GOVERNOR TO AUTHORIZE AGENCIES TO EMPLOY PERSONS OUTSIDE THE MERIT SYSTEM IN A PROFESSIONAL OR SCIENTIFIC CAPACITY TO MAKE OR CONDUCT TEMPORARY AND SPECIAL INQUIRY IS DERIVED FROM THE LEGISLATURE (74 O.S. 840.8-6). THEREFORE, IT IS NECESSARY TO CONSTRUE THE GOVERNOR'S AUTHORITY RECEIVED FROM 74 O.S. 840.3 IN HARMONY WITH THE LEGISLATURE'S DESIGNATION OF UNCLASSIFIED POSITIONS AS FOUND IN SECTION 840.8 AND OTHERS. TO BE CONSISTENT ONE MUST CONCLUDE THAT THE LEGISLATURE MAY DESIGNATE BY STATUTE CERTAIN POSITIONS WHICH SHALL BE UNCLASSIFIED AND PREEMPT ITS GENERAL GRANT OF AUTHORITY TO THE GOVERNOR, THEREBY NOT ALLOWING HIM TO PLACE THOSE CERTAIN POSITIONS WITHIN THE MERIT SYSTEM.
CONCLUSION
IT IS THE OPINION OF THE UNDERSIGNED THAT THE GOVERNOR BY EXECUTIVE ORDER MAY NOT PLACE UNDER THE MERIT SYSTEM UNCLASSIFIED EMPLOYEES APPOINTED BY THE GOVERNOR'S AUTHORITY IN A PROFESSIONAL OR SCIENTIFIC CAPACITY PURSUANT TO 74 O.S. 840.8(6). THAT THE LEGISLATURE BY SPECIFIC PROVISION PROVIDED THAT SAID POSITIONS SHALL BE PART OF THE UNCLASSIFIED SERVICE WHICH IN THIS INSTANCE PREVAILS OVER THE GENERAL GRANT OF AUTHORITY TO THE GOVERNOR IN 74 O.S. 840.3 TO PLACE AGENCY AND DEPARTMENTS UNDER THE MERIT SYSTEM. THEREFORE, EXECUTIVE ORDER 91-1 HAD NO LAWFUL EFFECT AS TO POSITIONS AND PERSONNEL APPOINTED BY A "GOVERNOR'S APPOINTMENT LETTER AUTHORIZING THE HIGHWAY SAFETY DIVISION TO EMPLOY PERSONNEL PURSUANT TO SUBSECTION 6 OF SECTION 840.8; AND ANY SUCH EMPLOYEES REMAIN PART OF THE UNCLASSIFIED SERVICE.
(JOHN M. CRITTENDEN)