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After having decided that certain offices shall be elective, the lawmakers have not followed any consistent principles in selecting the methods of appointment, except in the case of the two important officers mentioned in the constitution, the superintendents of public works and of prisons, who are appointed by the governor by and with the advice and consent of the senate. The offices created by statute are filled by a variety of methods, so large that it has surely exhausted the inventive. genius of our legislators. Whatever may have been the considerations. brought to bear in determining the mode of appointment to any particular office or group of offices, it is clear that the standard of responsibility and efficiency has not been the dominant motive. At all events the debates and records available do not show that any effort has been made to discover and apply such a standard in providing modes of appointment.
When tried by canons of consistency and responsibility, the methods of removal provided by the constitution and statutes are found to be confusing beyond measure. Article V of the Constitution authorizes the removal of two officers by the governor and the suspension of a third. The superintendent of public works "may be suspended or removed from office by the governor, whenever, in his judgment, the public interest shall so require." The superintendent of prisons may be removed by the governor "for cause at any time." In the case of the removal of the former officer, the governor must file with the secretary of state. a statement of the cause of such removal and shall report such removal and the cause thereof to the legislature at its next session. In the case of the removal of a superintendent of prisons, however, the governor must give the officer a copy of the charges against him and an opportunity to be heard in his own defense. It is difficult to imagine the considerations which require that a superintendent of prisons about to be removed should be heard in his own defense, while a superintendent of public works in a similar position should not be given that opportunity.
In the case of the officers made elective by the constitution, the principle of complete independence of the governor is maintained, except in one instance. The state treasurer may be suspended by the governor, but only during the recess of the legislature and until thirty days after the commencement of the next session. The governor may exercise this high power whenever it appears to him that the treasurer has "in any particular, violated his duty." If the governor suspends a treasurer under such circumstances, he may appoint some person to discharge the duties of the office during the suspension of the treasurer. It is difficult to see what standards of responsibility and efficiency place the treasurer under such partial control by the governor and left the other high elective officers entirely exempt. Surely a comptroller, or state engineer and sur
veyor, or attorney general who violated his duties could do about as much harm to the public interest as a treasurer. Worse injuries to the state are conceivable than the loss of money or a confusion of accounts in the treasury department.
In the case of offices created by statute, there is also great variation in the methods of removal. Perhaps the principle most consistently applied is that the consent of the senate shall be necessary to the removal by the governor of appointive officers of high rank. The origin of this principle is clear: fear of concentrating too much power in the hands of the executive and the reluctance with which party organizations in the senate yield any control over patronage.
Nevertheless, the principle is not carried out in our state government with logical exactness. Certain high officers, constitutional and statutory, the superintendents of public works and of prisons and public service commissioners, for instance, are removable by the governor without the consent of the senate, but in each case different procedures and limitations prevail. The historical reasons for the absence of the requirement of senatorial approval in the case of these three officers are themselves an eloquent testimony to the principle of responsibility and efficiency. The first two offices were created by constitutional action so that party considerations could not enter so fully into their formation, and the public service commissions were established under the recommendation of Governor Hughes, who was determined in his belief that responsibility for the work of these commissions could not be fixed unless the practice of requiring senatorial consent to removals was abandoned.
Indeed, there is ample justification for the view that the desire of party organizations to control patronage, rather than fear of the executive or interest in responsible government, has been the dominant motive in establishing senatorial authority over removals. Perhaps this is most clearly brought out in the administrative history of the federal government. The constitution of the United States, which requires the consent of the senate to the appointment of certain officers, is silent as to the process of removal, except by impeachment. Recognizing that it was not intended to employ this cumbersome procedure in the removal of minor officers, the very first congress under the constitution, after a long and informing debate, assumed that the removal power could be exercised by the president alone in the case of offices then under discussion. In spite of discussions of the subject from time to time, this legislative decision on the constitutional point remained undisturbed until 1867, when the Republican leaders in congress broke with President Johnson and determined to destroy his authority by passing the Tenure of Office Act, which required the consent of the senate for the removal of officers by the executive. The provision caused great fric
tion, and in Grant's administration (1869) it was modified. Finally, in 1886, the law was swept away entirely, experience under the act clearly demonstrating its evil effects upon efficient administration and party responsibility.
The fear of highly centralized power and the desire of parties to control patronage have likewise been responsible for attempts to fix the terms of many high officers, but here also we find the same confusion and absence of principle as in other branches of administrative law. The term of the superintendent of public works, for example, is merely to the end of the term of the governor by whom he is nominated and that of the superintendent of prisons is for five years unless sooner removed. The term of the civil service commission is six years, that of the superintendent of insurance, three years, that of the health officer of the port, four years, and so on. It would baffle the skill of the best casuist to discover any reason for such differences in terms.
Of course, it is commonly recognized that those officers who are required to have technical and professional skill should enjoy longer fixed terms than those whose functions are purely political. Indeed, organizations representing the various professions, knowing the relation between permanence and efficiency in private business, have sought to establish it in public business by recommending long terms for technical officers. Such recommendations, however, overlook two fundamental facts, namely, that no business corporation, except in rare cases, would for a moment agree to keep a technical expert for a term of ten years, no matter how inefficient he might prove after a trial or what impairment of faculties might set in within six months, and that the technical experts who have rendered the most acceptable service to the federal government are not protected by long terms of service requiring an extraordinary process for removal. This should lead us to inquire whether the highly desirable permanence of tenure for technical experts cannot be secured by some other means than a fixed term guarded against removal, which fails to protect the public against an evil of equal magnitude, the long continuance of inefficient persons in office.
Such an inquiry reveals at the outset the fact that we have attempted to secure responsible and efficient government without utilizing the means which are known to be effective for locating and enforcing responsibility, and have adopted methods for obtaining efficiency which are repudiated in institutions, both public and private, where efficiency obtains. We have sacrificed, perhaps unwittingly, honest and efficient government to our fear of vesting power in the hands of our public officers. No business, public as well as private, can be successful if those who are in charge of it are not given powers commensurate with their responsibilities. It may be that political expediency makes it desir
able to create such a confusion of offices, terms and authorities as to prevent any person or group from doing much harm (except when a party organization controls all of them unofficially). If so, then the quest for honesty and efficiency all through the government is futile. Efficiency depends upon responsiveness and responsibility and these depend upon the possession of adequate authority with means adapted to its effective exercise.
Defects in Departmental Organization
The foregoing is a general statement setting forth the basis for considering what defects there are in the organization of the state government for purposes of administration and an appraisal of provisions for the chief executive. The part of this report which follows deals with the organization of the administrative departments, commissions and offices, and the conclusions drawn in nearly every case would be equally applicable whatever be the overhead or central executive machinery of control. In fact, if there were no provision for a single chief executive, if the governor were only a part of the legislature and each head of department or other administrative agency were required to deal directly with the legislature, the organization would be defective in nearly every particular noted below.
FOR THE ADMINISTRATION OF THE
STATE'S PROPRIETARY AND OTHER GENERAL
Before discussing the administrative organization for rendering service to the public-i. e., for doing the things which contribute to the welfare of citizens-it seems desirable to consider those functions which have to do with the state equipping itself for service. There is a whole group of official activities that constitute what is sometimes called the business side of public enterprise or the relation of the government to the state acting as a proprietor-administrative acts associated with: 1. State financing or procuring funds such as:
a. Assessing and equalizing the valuation of property for purposes of direct taxation
b. Fixing indirect revenue charges
c. Collecting revenues levied or charged according to law
d. Selling bonds and issuing other evidences of debt for funds, or refunding
Caring for funds and securities acquired
f. Disbursing funds in liquidation of debt and obligation
incurred in making purchases
2. Contracting for personal services
3. Purchasing services other than personal, such as printing, advertising, transportation, materials, supplies and equipment and other properties
4. Providing for the custody, the preservation and disposition of property of the state while not in use, and a method for determining whether properties are cared for while the users are to be held responsible
5. Keeping the accounts needed to control the administration of funds and properties, and for the preparation of reports. on assets, liabilities, revenues, expenses, surplus or deficit 6. Providing for the preservation of official records and documents other than those in use by persons who are to be held responsible
Present Agencies of the State Included in Group
Already the state, as a matter of common sense and common thinking, is making this distinction in its organization for doing things. The activities referred to are now performed by:
Secretary (for the) of state