Governor can’t remove board members without written notice, hearing on charges
JEFFERSON CITY, Mo. – Professional politician and part-time governor Eric Greitens violated state law in September when he removed State Board of Education Member Melissa Gelner from office after she refused to support his shadowy plot to oust Missouri Department of Elementary and Secondary Education Commissioner Margie Vandeven. According to news reports, a second state board member expects Greitens to unilaterally remove him from his post for the same reason, which likewise would be illegal.
“In his sinister scheme to politicize and control public education, there is nothing Eric Greitens won’t do, including break the law,” said House Minority Leader Gail McCann Beatty, D-Kansas City. “State law says that once a board member takes office, the governor can’t remove him or her without cause and due process. But as he has proven time and again, Greitens knows little about state law and cares less.”
RSMo. 161.022.2, the statute governing the removal of State Board of Education members, says:
“No member may be removed by the governor except after written notice and hearing on charges of malfeasance, misfeasance, or nonfeasance in office.”
Greitens violated this law by removing Gelner from the board on Sept. 15 without providing the written notice and hearing on charges the law requires. Instead, Greitens merely withdrew her appointment, which had yet to be confirmed by the Senate. However, since Gelner had already been sworn in as a member of the board, on Aug. 15, the due process protections of RSMo. 161.022.2 applied as the law provides no exclusion for board members who have yet to be confirmed.
Both the Missouri Constitution and state statutes are silent on whether the governor can withdraw an appointment prior to Senate confirmation. As a result, a state law specifically prohibiting the governor from removing state school board members unless certain procedures are followed would trump any informal practice allowing withdrawals, assuming such a practice is, in fact, generally permissible.
In a 1977 legal opinion, Attorney General John Ashcroft said the governor can withdraw the pending nomination of someone who hasn’t yet taken office. However, Ashcroft said the governor loses the authority to withdraw in the case of a recess appointment who takes office while the Senate isn’t in session. The exception, Ashcroft said, would be department directors subject to removal at the governor’s pleasure under Article IV, Section 18 of the state constitution.
In Attorney General’s Opinion No. 203-77, Ashcroft said:
“Unless the Governor lawfully removes a person after appointing him during a recess, the last official act of the Governor occurs when the Governor appoints the person during a recess and such person takes office. An attempted withdrawal by the Governor at that point of a person who was appointed while the Senate was in recess, would be tantamount to removal by the Governor. It is our view that the Governor does not have the authority to remove a person who has been so appointed and is acting, unless the Governor’s removal power is exercised pursuant to Section 17 of Article IV.”
The state school board has the exclusive authority to hire and fire the DESE commissioner under Article IX, Section 2b of the constitution, which is why Greitens can’t remove Vandeven directly and instead is attempting to appoint a board majority willing to do his bidding.
The St. Louis Post-Dispatch reported on Nov. 13 that John “Tim” Sumners of Joplin, who was sworn in as a board member on Oct. 30, is urging his colleagues to hold off on attempts to oust Vandeven and expects Greitens to remove him as well because of his resistance. If Greitens unilaterally withdraws Sumners’ appointment, he would be violating RSMo. 161.022 for the second time.
Greitens has appointed five of the board’s eight members since this summer. Not coincidentally, five board votes are required to remove the commissioner. None of Greitens’ board appointments have yet been confirmed by the Senate.
The effort to oust Vandeven is opposed by Missouri’s major education organizations, many local educators and administrators, and lawmakers of both political parties.
RSMo. 161.022 can be found here:
http://revisor.mo.gov/main/OneSection.aspx?section=161.022&bid=7840&hl=
Attorney General’s Opinion No. 203-77 can be found here:
http://ago.mo.gov/docs/default-source/opinions/1977/226_1977.pdf?sfvrsn=2
