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PALMER v. UNITED STATES CIVIL SERVICE COMMISSION

January 12, 1961

GLEN D. PALMER AND STATE OF ILLINOIS, PETITIONERS,
v.
UNITED STATES CIVIL SERVICE COMMISSION, RESPONDENT.



The opinion of the court was delivered by: Poos, District Judge.

This case is here on appeal from an Order of the United States Civil Service Commission. The State of Illinois and Glen D. Palmer, Director of Conservation of the State of Illinois, perfect the appeal from the Order.

The Commission issued its "Letter of Charges" to the State of Illinois and Glen D. Palmer, in which it charged that it was in receipt of information which warranted it, under the provisions of Section 12 of the Act of August 2, 1939, as amended July 19, 1940, 54 Stat. 767 (U.S.C.A., Title 5, Section 118k), in making an investigation of improper political activities of Glen D. Palmer, Director of Department of Conservation, State of Illinois. The "Letter" stated that the term "Republican Party" means a political party whose candidates for Presidential electors received votes in the last preceding election at which Presidential electors were selected; the term "political campaign" means the political campaign of a candidate for nomination by, or election as the candidate for nomination by, or election as the candidate of, a political party as defined above, and the term "political management" means the management of a political campaign as defined above. The "Letter of Charges" is dated June 9, 1958, and it charged as follows:

I.

That Glen D. Palmer has been employed by the Department of Conservation, State of Illinois, since Jan. 28, 1953.

II.

That by virtue of said employment his principal employment is in connection with an activity, the Department of Conservation, State of Illinois, which is financed in whole or in part by loans and grants made by the United States.

III.

That while so employed the said Glen D. Palmer took an active part in political management and in political campaigns, in that:

    (a) The said Glen D. Palmer has served as precinct
  committeeman and Chairman of the Kendall County
  Republican Committee, Kendall County, Illinois, from
  Jan. 28, 1953, to the present.
    (b) The said Glen D. Palmer did file Primary
  Petitions for Precinct Committeeman of the Republican
  Party with the County Clerk, Kendall County,
  Illinois, on Jan. 18, 1954, and Jan. 16, 1956, and as
  a result thereof was a candidate for and elected to
  that position in the primary elections of April 13,
  1954, and April 10, 1956.
    (c) The said Glen D. Palmer did solicit signatures
  on his own behalf on a primary petition for Precinct
  Committeeman of the Republican Party in the town of
  Bristol, Kendall County, Illinois, for the primary
  election held on April 8, 1958.
    (d) The said Glen D. Palmer did file with the
  County Clerk, Kendall County, Illinois, a Primary
  Petition for Precinct Committeeman of the Republican
  Party and an Oath and Statement of Candidacy for the
  primary election of April 8, 1958.
    (e) The name of Glen D. Palmer did appear on the
  ballot as a candidate for and the said Glen D. Palmer
  was elected as a Republican Party Precinct
  Committeeman, Bristol Township, Kendall County,
  Illinois, in the primary election of April 8, 1958.

IV.

That the acts herein described on the part of Glen D. Palmer are in violation of Section 12(a) and Section 15 of the Act of Aug. 2, 1939, as amended, 5 U.S.C.A. §§ 118k(a), 118k-1.

This letter was dated and signed in Washington, D.C. by the Assistant General Counsel of the U.S. Civil Service Commission, and was duly served on the respondents, the State of Illinois and Glen D. Palmer.

The State of Illinois and Glen D. Palmer filed answers to the "Letter of Charges", issue was joined, and the matter came on for hearing before the U.S. Civil Service Commission.

Glen D. Palmer entered into a stipulation with the Commission at the hearing, the effect of which admits the political activity described in Paragraph III of the "Charges". This stipulation was entered into on Sept. 3, 1958, and later, on Oct. 24, 1958, a further stipulation was made in which it was agreed that Glen D. Palmer has held the office of Director of Conservation of the State of Illinois from Jan. 28, 1953, to the present, and that the salary of the Director of Conservation of the State of Illinois is $12,000 per annum.

The United States Civil Service Commission made its case by three witnesses, James H. Wilder, a bookkeeper in the Treasurer's Office of the State of Illinois; Francis A. Whitney, Supervisor of Accounting in the Department of Conservation; and Sam A. Parr, Administrative Assistant in the Department of Conservation of the State of Illinois, all of whom developed the facts on which the Commission entered its order against Glen D. Palmer and the State of Illinois.

The facts show that all monies spent by the Department of Conservation are appropriated by the General Assembly of Illinois, the Legislative Branch of the State Government; that no federal money is spent by the Department, the Department only spending money in accordance with monies appropriated to it by the General Assembly. This is in accordance with the Constitution of the State of Illinois, which provides, in Article IV, Sec. 17 and 18, S.H.A., as follows:

    "Sec. 17. No money shall be drawn from the treasury
  except in pursuance of an appropriation made by law,
  and on the presentation of a warrant issued by the
  auditor thereon; and no money shall be diverted from
  any appropriation made for any purpose, or taken from
  any fund whatever, either by joint or separate
  resolution * * *."
    "Sec. 18. Each general assembly shall provide for
  all the appropriations necessary for the ordinary and
  contingent expenses of the government until the
  expiration of the first fiscal quarter after the
  adjournment of the next regular session, the
  aggregate amount of which shall not be increased
  without a vote of two-thirds of the members elected
  to each house, nor exceed the amount of revenue
  authorized by law to be raised in such time; and all
  appropriations, general or special, requiring money
  to be paid out of the state treasury, from funds
  belonging to the state, shall end with such fiscal
  quarter * * *"

Thus, under the above quoted sections, the General Assembly must, every two years, appropriate all money spent in running State government. This money can only be withdrawn from the State treasury on a voucher issued by the Auditor of Public Accounts.

The facts further show that there are nine divisions in the Department of Conservation, namely, the Division of Park Memorials, Forestry, Fisheries, Game, Game Management, Engineering, Law, Education and the General Office; that all the Divisions in the Department of Conservation are financed through the Game Fund except Engineering, Parks and Forestry. All divisions are administered by the Director. The Director's duties are full time. The duties that the Director is required to fill are almost a two-man job. The size of the Department requires of him sixty hours a week to handle the work. He is a member of from nine to twelve committees; is required to run the administrative staff, and to administer the entire conservation program, including the ramifications of the entire nine divisions. He must travel throughout the State and out of the State on conservation business. Within the Department there are ten to twelve boards, commissions and councils which the Director, under statutory duties, must run. In addition to the statutory duties, other duties are planning of lakes, acquisition of land, engineering, stocking of lakes, thirty memorials and forty-five parks to be looked after, plus two conservation areas, new picnic areas to be looked after, new additions to buildings to be supervised, new buildings in process of erection to be supervised, the collection of admission fees, new highway construction to lake areas, construction of lakes, game propagation, many game farms, the rearing, raising and distribution of game birds, supervising personnel, personal interviews with fish and game enthusiasts, requests for stocking of fish to be disposed of and the delivery of fish to lake areas, experimental work with new species of game birds for Illinois, development of game propagation lands, forestry and nursery developments, distribution of trees to the public, accounting in connection with all projects, preparation of budgets, educational film service, public relations work, filling speaking engagements at public fish and game meetings. He must also meet the public who come to his office on conservation matters. These duties are all required by State Law. In addition to these duties, he also has duties with Federal Aid projects, and included among these are the setting up of various developments and new projects, and those that might come under federal aid are submitted by the Department to federal governmental agencies for approval and then turned over to the coordinator, a State employee, who must have his name submitted to and his appointment approved by the Federal Government, after which appointment he handles all such projects and from time of approval he takes over and does the departmental work on these projects. This is done under the rules and regulations of the Bureau of Sports, Fisheries and Wild Life, a division of the United States Department of the Interior. The Department of Conservation has had such a coordinator since 1942.

The duties of the coordinator are to take the project or projects over and carry through until completion, and after completion send the reports in to the Federal Government for reimbursement so that the State of Illinois can recover the monies appropriated by the General Assembly.

The record further shows that all money spent on these projects is State money, appropriated by the General Assembly. The requests for reimbursement are prepared by the coordinator and signed by the Director. State regulations require this. The agreement between the State and the federal agency requires that the coordinator is to be in principal control of all Federal Aid projects. The rules of the Federal Agency that require this are in the Federal Aid in Fish and Wildlife Manual, Section 170, Paragraphs 171.1 through 172.1, which, in brief, provide for the appointment of the coordinator and that he will serve as the principal administrative head of the Federal Aid Program and be responsible therefor through completion.

These various programs are provided for under the following Federal Acts, namely, Pittman-Robertson, Dingell-Johnson, and the Clarke-McNary Acts.

The Pittman-Robertson Act, 16 U.S.C.A. § 669 provides as follows:

    "The Secretary of the Interior is authorized to
  cooperate with the States, through their respective
  State fish and game departments, in
  wildlife-restoration projects as hereinafter in
  sections 669-669b, and 669c-669i of this title set
  forth; but no money apportioned under said sections
  to any State shall be expended therein until its
  legislature, or other State agency authorized by the
  State constitution to make laws governing the
  conservation of wildlife, shall have assented to the
  provision of said sections and shall have passed laws
  for the conservation of wildlife which shall include
  a prohibition against the diversion of license fees
  paid by hunters for any other purpose than the
  administration of said State fish and game
  department, except that, until the final adjournment
  of the first regular session of the legislature held
  after

  September 2, 1937, the assent of the Governor of the
  State shall be sufficient. The Secretary of the
  Interior and the State fish and game department of
  each State accepting the benefits of said sections,
  shall agree upon the wildlife-restoration projects to
  be aided in such State under the terms of said
  sections and all projects shall conform to the
  standards fixed by the Secretary of the Interior.
  Sept. 2, 1937, c. 899, § 1, 50 Stat. 917; 1939
  Reorg. Plan No. II, § 4(f), eff. July 1, 1939, 4
  F.R. 2731, 53 Stat. 1433."

It is under this Section and the other provisions of the Act that Congress has made available funds received from taxes laid on firearms, shells, and cartridges, to the Secretary of the Interior for use by him in cooperation with the States for wildlife restoration.

The Dingell-Johnson Act, 16 U.S.C.A. § 777, is in the same language as the quoted provision above except that the available tax revenue to create the fund is received from taxes laid on fishing rods, creels, reels, and artificial lures, baits and flies for fish restoration and management projects.

The Clarke-McNary Act, 16 U.S.C.A. § 563, provides as follows:

    "The Secretary of Agriculture is authorized, and on
  such conditions as he deems wise, to stipulate and
  agree with any State or group of States to cooperate
  in the organization and maintenance of a system of
  fire protection on any private or State forest lands
  within such State or States and situated upon the
  watershed of a navigable river. No such stipulation
  or agreement shall be made with any State which has
  not provided by law for a system of forest-fire
  protection. In no case shall the amount expended in
  any State exceed in any fiscal year the amount
  appropriated by that State for the same purpose
  during the same fiscal year."

16 U.S.C.A. § 564, provides as follows:

    "The Secretary of Agriculture is authorized and
  directed, in cooperation with appropriate officials
  of the various States or other suitable agencies, to
  recommend for each forest region of the United States
  such systems of forest-fire prevention and
  suppression as will adequately protect the timbered
  and cut-over lands therein with a view to the
  protection of forest and water resources and the
  continuous production of timber on lands chiefly
  suitable therefor."

16 U.S.C.A. § 565b provides as follows:

    "The Secretary of Agriculture is authorized,
  subject to such conditions as he may prescribe, to
  transfer, without reimbursement or at such prices and
  upon such terms as he may impose, to States and
  political subdivisions or agencies thereof fire
  lookout towers and other structures or improvements
  used by the Forest Service for fire prevention or
  suppression purposes, and the land used in connection
  therewith if such land is outside national forest
  boundaries when they are no longer needed by the
  Forest Service for such purposes but are of value to
  the State or political subdivision or agency thereof
  in its fire protection system: Provided,
  That if any property so transferred is not put to use
  for the purpose for which it was transferred within
  two years from the date of transfer, or if, within
  fifteen years from the date of transfer, any such
  property should cease to be used for the purpose for
  which it was transferred for a period of two years,
  title thereto shall revert to and immediately revest
  in the United States."

16 U.S.C.A. § 567, provides as follows:

16 U.S.C.A. § 567a provides as follows:

    "For the purpose of stimulating the acquisition,
  development, and proper administration and management
  of State forests and of insuring coordinated effort
  by Federal and State agencies in carrying out a
  comprehensive national program of forest-land
  management, the Secretary of Agriculture is
  authorized to enter into cooperative agreements with
  appropriate officials of any State or States for,
  acquiring in the name of the United States, by
  purchase or otherwise, such forest lands within the
  cooperating State as in his judgment the State is
  adequately prepared to administer, develop, and
  manage as State forests in accordance with the
  provisions of this section and section 567(b) of this
  title, and with such other terms not inconsistent
  therewith as he shall prescribe, such acquisition to
  include the mapping, examination, appraisal, and
  surveying of such lands and the doing of all things
  necessary to perfect title thereto in the United
  States: Provided, That, since it is the
  declared policy of congress to maintain and, where it
  is in the national interest to extend the
  national-forest-system, nothing herein shall be
  construed to modify, limit, or change in any manner
  whatsoever the future ownership and administration by
  the United States of existing national forests and
  related facilities, or hereafter to restrict or
  prevent their extension through the acquisition by
  purchase or otherwise of additional lands for any
  national-forest purpose: Provided further,
  That this section and section 567b of this title
  shall not be construed to limit or repeal any
  legislation authorizing land exchanges by the Federal
  Government, and private lands acquired by exchange
  within the limits of any area subject to a
  cooperative agreement of the character herein
  authorized shall hereafter be subject to the
  provisions of this section and section
  567b of this title."

16 U.S.C.A. § 567b provides as follows:

    "No cooperative agreement shall be entered into or
  continued in force under the authority of section
  567(a) of this title or any land acquired under
  sections 567(a)-567(c) of this title turned over to
  the cooperating State for administration,
  development, and management unless the State
  concerned, as a consideration for the benefits
  extended to it thereunder, complies in a manner
  satisfactory to the Secretary of Agriculture with the
  following conditions and requirements which shall
  constitute a part of every such agreement: * * *
    "(b) In order to insure a stable and efficient
  organization for the development and administration
  of the lands acquired under sections 567(a)-567(c) of
  this title, the State shall provide for the
  employment of a State forester, who shall be a
  trained forester of recognized standing.
    "(c) The Secretary of Agriculture and the
  appropriate authorities of each cooperating State
  shall work out a mutually satisfactory plan defining
  forest areas within the State which can be most
  effectively and economically administered by said
  State, which plan shall constitute a part of the
  cooperative agreement between the United States and
  the State concerned: Provided, That nothing
  herein shall be held to prevent the Secretary of
  Agriculture from later agreeing with the proper State
  authorities to desirable modifications in such plan.
    "(d) No payment of Federal funds shall be made for
  land selected for purchase by the United States under
  sections 567(a)-567(c) of this title until such
  proposed purchase has been submitted to and approved
  by the National Forest Reservation Commission created
  by section 513 of this title.
    "(e) Subject to the approval of the National Forest
  Reservation Commission, the Secretary of Agriculture
  is authorized to pay out of any available money
  appropriated for carrying out the purposes of
  sections 567(a)-567(c) of this title any State,
  county, and/or town taxes, exclusive of penalties,
  due or accrued on any forest lands acquired by the
  United States under donations from the owners
  thereof, and which lands are to be included in a
  State or other public forest pursuant to said
  sections.
    "(f) The State shall prepare such standards of
  forest administration, development, and management as
  are necessary to insure maximum feasible utility for
  timber production and watershed protection, and are
  acceptable to the Secretary of Agriculture and shall
  apply the same to lands acquired and placed under the
  jurisdiction of the State pursuant to sections
  567(a)-567(c) of this title.
    "(g) That with the exception of such Federal
  expenditures as may be made for unemployment relief,
  the State shall pay without assistance from the
  Federal Government the entire future cost of
  administering, developing and managing all forest
  lands acquired and over which it has been given
  jurisdiction under sections 567(a)-567(c) of this
  title.
    "(h) During the period any cooperative agreement
  made under sections 567(a)-567(c) of this title
  remains in force, one-half of the gross proceeds from
  all lands covered by said agreement and to which the
  United States holds title shall be paid by the State
  to the United States and covered into the Treasury.
  All such payments shall be credited to the purchase
  price the State is to pay the United States for said
  land, such purchase price to be an amount equal to
  the total sum expended by the United States in
  acquiring said lands. Upon payments of the full
  purchase price, either as herein provided or
  otherwise, title to said lands shall be transferred
  from the Federal Government to the State, and the
  Secretary of Agriculture is authorized to take such
  action and incur such expenditures as may be
  necessary to effectuate such transfer. * * *
    "(j) The State shall furnish the Secretary of
  Agriculture with such annual, periodic, or special
  reports as he may require respecting the State's
  operations under its agreement with him.

16 U.S.C.A. § 568 provides as follows:

    "The Secretary of Agriculture is authorized and
  directed, in cooperation with the land grant colleges
  and universities of the various States, or in his
  discretion, with other suitable State agencies, to
  aid farmers through advice, education,
  demonstrations, and other similar means in
  establishing, renewing, protecting, and managing wood
  lots, shelter belts, windbreaks, and other valuable
  forest growth, and in harvesting, utilizing and
  marketing the products thereof. Except for
  preliminary investigations, the amount expended by
  the Federal Government under this section in
  cooperation with any State or other cooperating
  agency during any fiscal year shall not exceed the
  amount expended by the State or other cooperating
  agency for the same purpose during the same fiscal
  year, and the Secretary of Agriculture is authorized
  to make expenditures on the certificate of the
  appropriate State official that the State
  expenditures, as provided for in this section, have
  been made. There is authorized to be appropriated
  annually out of any money in the Treasury not
  otherwise appropriated, not more than $500,000 to
  enable the Secretary of Agriculture to carry out the
  provisions of this section."

16 U.S.C.A. § 568c provides as follows:

    "The Secretary of Agriculture is authorized to
  cooperate with State foresters or equivalent
  officials of the several States, Territories, and
  possessions for the purpose of encouraging the
  States, Territories, and possessions to provide
  technical services to private forest landowners and
  operators, and processors of primary forest products
  with respect to the management of forest lands and
  the harvesting, marketing, and processing of forest
  products, and where necessary to avoid uneconomic
  duplication of certain technical and training
  services, to make such services available to private
  agencies and persons. All such technical services
  shall be provided in each State, Territory, or
  possession in accordance with a plan agreed upon in
  advance between the Secretary and the State forester
  or equivalent official of the State, Territory or
  possession. The provisions of Sections 568(c) and
  568(d) of this title and the plan agreed upon for
  each State, Territory or possession shall be carried
  out in such manner as to encourage the utilization of
  private agencies and individuals furnishing services
  of the type described in this section."

16 U.S.C.A. § 568e, provides as follows:

    "(a) The Congress finds and declares that building
  up and maintaining a level of timber growing stocks
  adequate to meet the Nation's domestic needs for a
  dependable future supply of industrial wood is
  essential to the public welfare and security; that
  assisting in improving and protecting the more than
  fifty million acres of idle non-Federal and Federal
  lands for this purpose would not only add to the
  economic strength of the Nation, but also bring
  increased public benefits from other values
  associated with forest cover; and that it is the
  policy of the Congress that the Secretary of
  Agriculture in order to encourage, promote, and
  assure fully adequate future resources of readily
  available timber should assist the States in
  undertaking needed programs of tree planting.
    "(b) Any State forester or equivalent State
  official may submit to the Secretary of Agriculture a
  plan for

  forest land tree planting and reforestation for the
  purpose of effecting the policy hereinbefore stated.
    "(c) When the Secretary of Agriculture has approved
  the plan, he is authorized and directed to assist the
  State in carrying out such plan, which assistance may
  include giving of advice and technical assistance and
  furnishing financial contributions: Provided, That,
  for the non-Federal forest land tree planting and
  reforestation, the financial contribution expended by
  the Federal Government during any fiscal year to
  assist the State to carry out the plan shall not
  exceed the amount expended by the State for the same
  purposes during the same fiscal year, and the
  Secretary of Agriculture is authorized to make
  financial contributions on the certificate of the
  State official in charge of the administration of the
  plan as to the amount of expenditures made by the
  State.
    "(d) In any plan that coordinates forest lands
  under the jurisdiction of any Federal agency other
  than the Department of Agriculture, the Secretary of
  Agriculture shall obtain the cooperation and
  assistance of the Federal agency having jurisdiction
  and the appropriate State forester in the approval
  and carrying out of the plan.
    "(e) The Secretary of Agriculture may prescribe
  such rules and regulations as may be appropriate to
  carry out the purposes of this section. * * *."

This Act gives consent of Congress to each of the several states to enter into any agreement or compact, not in conflict with any law of the United States, with any other state or states for the purpose of conserving forests, etc. This Act is to be carried out by the United States Secretary of Agriculture.

Each of the Acts contemplates an agreement on the part of Congress with each or any of the States to enter into cooperative agreements to accomplish the respective purposes therein provided for.

The General Assembly of Illinois has enacted legislation as required by the respective Acts to enable cooperation on the part of the State in so far as its constitutional powers permit it to do. This is Section 63b1, Chapt. 127, Illinois Revised Statutes 1959, which provides as follows:

    "§ 63c. The Department of Conservation further
  shall have the power and authority to enter into
  agreements with appropriate federal agencies in order
  to better effect cooperative undertakings in the
  conservation, preservation, distribution and
  propagation of fish, mussels, frogs, turtles, game,
  wild animals, wild fowls, birds, trees, plants and
  forests."

This is the section of Illinois law that enables the State to enter into contracts with Federal agencies as provided in the three Federal Acts above mentioned. The record shows that contracts were made with the United States Interior Department for fish and game purposes and with the United States Agricultural Department for forestry purposes. The record further shows that federal aid projects are paid for with funds appropriated by the General Assembly of Illinois, and that after projects are completed the State is reimbursed for the federal portion of the project in accordance with the percentages as provided in the respective Federal Acts, and that the federal funds are then paid into the State Treasury upon order of the Auditor of Public Accounts and there remain until the General Assembly reappropriates funds. The federal money received in reimbursement cannot again be withdrawn except upon its appropriation by the General Assembly. It thus appears that in the first instance the monies that are spent by the "Department" here involved is all state money, and that the "Department" is really a mere agency through which federal funds are channelled into the State treasury in accordance with the contracts made as aforementioned.

It further appears from the record that the only projects that the Director has to be concerned with are those contemplated under the contractual agreements entered into with the United States Interior Department over fish and wildlife. The forestry programs entered into with the United States Department of Agriculture are conducted by the State Forester, who, under Illinois law, is appointed by the Director, who must qualify with the Federal Agency, and after the State Forester is appointed and qualified the Director has no further control over him.

It further appears from the record that the total amount of federal funds channelled into the State Treasury over the six-year period in question is $2,263,661.20, and that the General Assembly appropriated for the Department, during the same period, the sum of $35,975,405.21. The record for the monies received under the three Federal Acts breaks down as follows:

Pittman-Robertson, $1,438,349.52; Dingell-Johnson, $449,225.39, and Clarke-McNary, $376,086.29. The first is reimbursement of 4%; the second is reimbursement of 1.25%; and the third is reimbursement of 1.05% to the State of the monies appropriated to the Department of Conservation during the six-year period under the respective contracts.

The record also shows that the "Director" devoted less than 1% of his time to the projects for which the State was reimbursed during the six-year period, except none to forestry.

The "Director" stated that in all the past history of the Department, the Hatch Act had never been applied to his office; that he was appointed to his office by the Governor; the appointment was confirmed by a majority vote of the State Senate; that his appointment ran for two years at a time and that the Governor could remove him only with cause, as provided in Article V, Section 12 of the Illinois Constitution.

The State of Illinois and Glen D. Palmer raised the question of the constitutionality of Section 12(a) of the Hatch Act at the hearing. R. Page 9. The other questions raised in the record are that the Department of Conservation is not an activity financed in whole or in part by the Federal Government; that neither of the respondents are able to determine from the meaning of Section 12 what is meant by the term "loan or grant", because the terms are not defined in Section 12; that Section 12(a) provides certain exemptions to State employees or officers from the operation of the Hatch Act which applies to elected heads of executive departments of the State who are not covered by the merit or Civil Service system or program, and that it becomes apparent when the exemption is read together with other exemptions under Section 12(a), the phrase "duly elected" should be interpreted in a broad sense to include "appointed or selected officials", which is a statutory construction problem; the de minimis rule; and the discriminatory exemptions provided for federal executive officers when the same exemptions are not given to State equivalent executive officers. R. pp. 8-10.

After full hearing the Commission hearing officer found that the respondent, Glen D. Palmer, Director of the Department of Conservation, is found to have engaged in political activities clearly in violation of Sec. 12(a) of the Hatch Act, provided that he was subject thereto; that the State of Illinois received substantial grants from the United States for the benefit of the Department of Conservation; that the Director of the Department of Conservation is not the elected head of an executive department; and finally, in recognition of the defense de minimis non curat lex, the respondent, Palmer, should not be held accountable in this proceeding for political activities. The Commission refused to accept the recommendation of the hearing officer as to the de minimis doctrine and held that it was inapplicable in this case. The Commission affirmatively found that Glen D. Palmer violated Section 12(a) of the Hatch Political Activities Act as alleged in the "Letter of Charges", and that his removal from the position of Director of the Department of Conservation (with ineligibility for reemployment by the State of Illinois within 18 months) is warranted. The order was duly entered of record, and this appeal therefrom perfected.

It is necessary for the Court to examine the record in detail as has been done and to apply the law in the light of all the legal questions raised.

Section 12(a) of the Hatch Act, also designated Section 118k, Title 5 U.S.C.A., and found at 54 Stat. 767, is as follows:

    "118k. Employees of State or local agencies
  financed by loans or grants from United
  States — Influencing elections; officers or
  employees defined.
    "(a) No officer or employee of any State or local
  agency whose principal employment is in connection
  with any activity which is financed in whole or in
  part by loans or grants made by the United States or
  by any Federal agency shall (1) use his official
  authority or influence for the purpose of interfering
  with an election or a nomination for office, or
  affecting the result thereof, or (2) directly or
  indirectly coerce, attempt to coerce, command, or
  advise any other such officer or employee to pay,
  lend or contribute any part of his salary or
  compensation or anything else of value to any party,
  committee, organization, agency, or person for
  political purposes. No such officer or employee shall
  take any active part in political management or in
  political campaigns. All such persons shall retain
  the right to vote as they may choose and to express
  their opinions on all political subjects and
  candidates. For the purposes of the second sentence
  of this subsection, the term "officer or employee"
  shall not be construed to include (1) the Governor or
  Lieutenant Governor of any State or any person who is
  authorized by law to act as Governor, or the mayor of
  any city; (2) duly elected heads of executive
  departments of any State or municipality who are not
  classified under a State or municipal merit or
  civil-service system; (3) officers holding elective
  offices."

Section 118k(b) provides for hearing for any violation of 118k(a) by the "Commission" and the requisite procedure, by notice to the offendor, setting forth the alleged violation and the time and place for hearing and after hearing for the entry of an order finding the violation and fixing the penalty. The penalty clause of Subsection (b) provides:

    "After such hearing, the Commission shall determine
  whether any violation of such subsection has occurred
  and whether such violation, if any, warrants the
  removal of the officer or employee by whom it was
  committed from his office or employment, and shall by
  registered mail notify such officer or employee and
  the appropriate State or local agency of such
  determination."

If the officer or employee is not discharged within 30 days, the Commission is to certify to the Federal Agency supplying money an order requiring it to withhold from its loans or grants to the State "an amount equal to two years' compensation at the rate such officer or employee was receiving at the time of such violation", all of which must be done by the Commission. Notice of the order must be sent by registered mail, and the order of the "Commission shall become final upon the expiration of thirty days after the mailing of notice" except as provided in Subsection (c). This Subsection (c) provides for appeal to the District Court, the Court to review on the entire record, including all of the evidence taken on the hearing, and which shall extend to questions of fact and law. This subsection further provides:

During the course of respondent Palmer's directorship there was in full force and effect the following provisions of the Constitution of Illinois, viz.:

Article V, Sec. 6, Constitution of 1870.

    "Sec. 6. The supreme executive power shall be
  vested in the governor, who shall take care that the
  laws be faithfully executed."
    "Sec. 10. The governor shall nominate, and by and
  with the advice and consent of the Senate, (a
  majority of all the senators elected concurring, by
  yeas and nays) appoint all officers whose offices are
  established by this constitution, or which may be
  created by law, and whose appointment or election is
  not otherwise provided for; and no such officer shall
  be appointed or elected by the general assembly."
    "Sec. 12. The governor shall have power to remove
  any officer whom he may appoint, in case of
  incompetency, neglect of duty, or malfeasance in
  office; and he may declare his office vacant, and
  fill the same as herein provided in other cases of
  vacancy."
    "Sec. 23. The officers named in this article shall
  receive for their services a salary to be established
  by law, which shall not be increased or diminished
  during their official terms * * *."

"Definition and Oath of Office."

    "Sec. 24. An office is a public position created by
  the constitution or law, continuing during the
  pleasure of the appointing power, or for a fixed
  time, with a successor elected or appointed. An
  employment is an agency, for a temporary purpose,
  which ceases when that purpose is accomplished."
    "Sec. 25. All civil officers, except members of the
  general assembly and such inferior officers as may be
  by law exempted, shall, before they enter on the
  duties of their respective offices, take and
  subscribe the following oath or affirmation: `I do
  solemnly swear (or affirm, as the case may be) that I
  will support the constitution of the United States,
  and the constitution of the State of Illinois, and
  that I will faithfully discharge the duties of the
  office of _____ according to the best of my ability.'
    "And no other oath, declaration or test shall be
  required as a qualification."

Article IV, Section 1 of the Constitution of Illinois provides:

    "The legislative power shall be vested in a general
  assembly, which shall consist of a senate and house
  of representatives, both to be elected by the
  people."

In pursuance of this constitutional power, the General Assembly in the year 1917, and as subsequently amended, passed the "Civil Administrative Code", providing for the creation of departments of State government. This Code is found at Chapt. 127, ...


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