AGO Opinion 81129

July 17, 1981
Opinion 81129

Senator Chris Beutler
Room 804 State Capitol
Lincoln, Nebraska 68509

Dear Senator Beutler:

You have asked if the constitution would permit the extension of the personnel act, or the rules and regulations adopted thereunder, to the employees of constitutional officers.

It would appear that the answer to your question is contained in the provisions of Article IV, Section 1, of the Nebraska Constitution, which opens by stating: "The executive officers of the state shall be the Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Attorney General, and the heads of such other executive departments as set forth herein or as may be established by law."

This section of the Constitution then closes with the provision: "Subject to the provisions of this Constitution, the heads of the various executive or civil departments shall have power to appoint and remove all subordinate employees in their respective departments."

In determining whether or not the provisions of the personnel act could be extended to constitutional officers, we consider the general rule that the constitutionality of an act would be determined from what may be done under the act.

In our opinion any attempt to extend the application of the personnel act to the departments referred to in Article IV, Section i, of the Constitution would take away, or substantially diminish, their power to appoint or remove all subordinate employees in their respective departments. If this is correct then it is doubtful that any attempt to extend the application of the personnel act to the constitutional officers could be successfully defended in the courts.

The same would be true with regard to any grievance procedures adopted by the personnel department pursuant to its rulemaking authority.

Very truly yours,

Attorney General

Bernard L. Packett
Assistant Attorney General