Governor’s Office, House Democrats spar over board appointment removal

  

JEFFERSON CITY, Mo. – The Governor’s Office responded Thursday to a Wednesday statement from House Democrats saying the Governor’s removal of an unconfirmed Board of Education appointment was a violation of state law.

“The House Democrats are flat wrong,” Parker Briden, governor’s press secretary said in a statement to the Kansas City Star Thursday. “Their press release is nothing more than a political stunt. The Missouri Constitution and state law clearly give Governor Greitens the power to withdraw recess appointments to the State Board of Education at any point prior to a confirmation vote in the Senate.

RELEASE: Greitens violated law by ousting state school board member

“Article IV, Section 17 of the Missouri Constitution and Section 106.010 of Missouri’s Revised Statutes make it clear that Members of the State Board of Education are appointed state officials subject to the Governor’s removal,” Briden continued. “In fact, a portion of the Missouri Attorney General opinion, selectively not quoted by House Democrats, affirms this. The Governor’s actions are obviously legal.”

Greitens, Beatty

Article IV, Section 17 reads:

Section 17. The governor, lieutenant governor, secretary of state, state treasurer and attorney general shall be elected at the presidential elections for terms of four years each. The state auditor shall be elected for a term of two years at the general election in the year 1948, and his successors shall be elected for terms of four years. No person shall be elected governor or treasurer more than twice, and no person who has held the office of governor or treasurer, or acted as governor or treasurer, for more than two years of a term to which some other person was elected to the office of governor or treasurer shall be elected to the office of governor or treasurer more than once. The heads of all the executive departments shall be appointed by the governor, by and with the advice and consent of the senate. All appointive officers may be removed by the governor and shall possess the qualifications required by this constitution or by law.

Source: Const. of 1875, Art. V, § 2.

(Amended August 17, 1965)

(Amended August 4, 1970)

RSMo. 106.010 reads:

106.010. The governor shall have power and he is hereby authorized to remove from office, without assigning any other reason therefor, any appointive state official required by law to be appointed by the governor, whenever in his opinion such removal is necessary for the betterment of the public service, but the governor may, at his discretion, in any order of removal which he may make under authority of this section, assign additional and more specific reasons for such removal.

The House Democrats’ released a no holds barred statement Wednesday calling the governor a “professional politician and part-time governor” and calling his moves to remove current Department of Elementary and Secondary Education Commissioner Margie Vandeven a “shadowy plot.” It also shares that, “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.”

Rep. Gail McCann Beatty

“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.”

The appointment in question is Melissa Gelner, who was appointed and later removed before a Senate confirmation. None of Greitens’ five appointments have been confirmed by the Senate yet, who meet again on January 3.

The statement says:

“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.

The Wednesday statement goes on to cite a Missouri attorney general opinion from 1977, which Briden refers to as being selectively quoted.

Attorney General’s Opinion No. 203-77 can be read here.

 

Minority Leader Beatty responded again late Thursday afternoon to the statement issued by the Greitens’ administration, reiterating the previous call that the governor has little knowledge of state statute.

As we stated earlier, the governor knows little about state law and cares less, so it comes as no surprise that his attempt to legally justify the unlawful removal of a State Board of Education member fails miserably,” Beatty said. “It is a well-established rule of statutory construction that a specific law trumps a general one. So, while RSMo. 106.010 cited by the governor grants a general power to remove appointed officials, it is trumped by RSMo. 161.022.2, which specifically prohibits the governor from removing a state school board member without cause or due process.”

RSMo. 161.022 reads:

161.022.

1. The state board of education consists of eight lay members appointed by the governor, by and with the advice and consent of the senate, after an open committee hearing. The term of office of each member is eight years. At the expiration of the term of each member, the governor, by and with the advice and consent of the senate, shall appoint a successor. If the general assembly is not in session at the time for making an appointment, the governor shall make a temporary appointment as in the case of a vacancy.

2. No member may be removed by the governor except after written notice and hearing on charges of malfeasance, misfeasance, or nonfeasance in office.

3. Each member of the board shall receive as compensation for his services twenty-five dollars for each day actually spent in attendance at board meetings, and in addition shall be reimbursed for all necessary expenses incurred in the performance of his duties as a member of the board.

 

Beatty’s statement continues, In addition, the governor’s authority under Article IV, Section 17 to remove most state department heads at his pleasure is irrelevant to the present situation since a state school board member is not a department head.”

The effort to oust Vandeven is opposed by Missouri’s education leaders, including MASA, MSTA, and legislative education committee chairs.

The State Board of Education is expected to have a closed door, closed vote, and closed record on Monday.

Rachael Herndon is the editor at The Missouri Times, but also produces This Week in Missouri Politics and publishes Missouri Times Magazine. She joined the Missouri Times in 2014, returning to political reporting after working as a campaign and legislative staffer.

Rachael studied at the University of Missouri – Columbia. She lives in Jefferson City with her husband, Brandon, and their two children.

To contact Rachael, email rachael@themissouritimes.com, or via Twitter @TheRachDunn.