by Phill Brooks
This fall, the state’s governor mounted a challenge to a major principle of Missouri’s Constitution.
It involved his successful efforts to get the state education commissioner fired by a method involving the constitutionally guaranteed independence for a few state departments.
The education commissioner serves at the pleasure of the state Board of Education that is protected by Missouri’s Constitution from interference by the governor.
For more than 120 years, there have been federal laws establishing independent federal agencies.
But states are different from the federal government in using the Constitution — the foundation of the structure of government — to establish independent departments.
In Missouri, these protected departments include Conservation, Transportation and Education. There’s even one agency below a department level which the Constitution gives independence.
It’s the University of Missouri Board of Curators which the Constitution grants the unique power of “government.” Decades ago, a university president told me he thought that gave the curators power to impose a statewide tax for the university. He was not joking.
These constitutionally protected agencies are governed by boards whose members, once confirmed, serve for fixed terms and cannot be removed without cause.
Over the decades, I’ve heard rural legislators passionately argue that hunting, fishing and wildlife protection are so fundamental to Missouri that they warrant constitutional protection from interference by politicians.
As for the Transportation Department, you need only to look at other states that have suffered from the political intrigues of highway funding to understand the wisdom of the framers of Missouri’s Constitution to put that area under constitutional protection.
If you have any doubts, just think about New Jersey Gov. Chris Christy’s “bridgegate.” Missouri’s Constitution assures no governor could do that in our state.
The constitutional protection for education’s governing board goes back to the original 1945 Constitution. There’s even a provision requiring a minimum level of funding for public schools.
But Greitens found a way around the Education Department’s independence.
The loophole arises because Missouri’s legislature meets only during part of the year. So, for more than six months when the legislature is not in session, the Senate cannot confirm the governor’s nominations.
In that case, Missouri law provides that a governor’s nomination becomes an immediate appointment, which ultimately must be confirmed by the Senate within 30 days after the legislature returns.
Because of delayed nominations and resignations, Greitens got to name five Education Board members who took office without Senate confirmation.
That should have given the governor the five-vote majority on the eight-member board to oust the education commissioner.
But he had to remove two nominees who voiced concerns about hasty action.
Under the governor’s approach, these appointments pending Senate confirmation did not enjoy job protection.
Another nominee who voted to retain the education commissioner, suddenly quit the day before the Education Board’s second ouster vote and was replaced just hours before the Friday, Dec. 1, vote to give Margie Vandeven the boot.
But this story is still developing.
One of the governor’s fired appointees has filed suit challenging his dismissal on grounds that the governor violated a law protecting Education Board members from being removed without cause and a hearing.
It’s a case that could invalidate Vandeven’s ouster. She has not ruled out returning as Education Commissioner were that to happen.
It’s also a case that has the potential to address the much broader issue about constitutional independence.
In the meantime, the Senate’s Education Committee chair — Gary Romine, R-Farmington — vows to filibuster confirmation of Greitens’ appointees who voted to fire the education commission.
I’m not completely sure blocking these nominations can stop the governor because there’s no enforceable provision setting a deadline for a governor to submit a nomination to the Senate.
That means if Greitens’ nominees are not confirmed, the governor could wait until the Senate adjourns in the spring before appointing new Education Board replacements who then could vote to fire the state’s education commissioner.
It makes for a complicated legislative issue next year if Missouri lawmakers want to protect the constitutional independence enjoyed by some agencies.