Rebman keeps job, at least until Beetem rules on injunction request

Lawrence Rebman is still a Missouri administrative law judge (ALJ) - at least until Cole County Circuit Judge Jon Beetem decides whether Rebman should get the injunction he's asked for.

After a three-hour hearing Monday, Beetem extended a temporary restraining order (TRO) "pending final judgment" in the case.

The TRO blocks the state Workers' Compensation Division from terminating Rebman, as it had planned to do June 15.

Then-Gov. Jay Nixon named Rebman as an ALJ for the state division on March 13, 2013 - the same day Nixon removed Rebman from his job as Missouri's Labor and Industrial Relations Department director.

This year, lawmakers passed a budget bill for the state business year that began July 1, funding the division with language that paid for ALJs only if they were appointed before Jan. 1, 2012, or after Jan. 1, 2015.

Rebman is the only ALJ in the Workers' Comp division who was appointed between those dates and, therefore, wasn't given a salary.

He sued Gov. Mike Parson over the division's decision to terminate his employment because there would be no money to pay him in the new budget year.

Deputy Solicitor General Julie Marie Blake told Beetem on Monday the Legislature was within its authority to write the budget as it did and a 2010 state appeals court ruling backs up that plan.

That case - Henry T. Herschel and others v. (Gov.) Jeremiah W. Nixon and others - also involved a Workers' Compensation Division decision to terminate five ALJs, after the Legislature didn't provide enough funding for their jobs.

After Beetem had ruled in that case that the administrative law judges could be removed only after a hearings process spelled out in state law, the court of appeals' Western District in Kansas City ruled the ALJs could be discharged "based on the General Assembly's appropriation of funds to the Division."

Blake told Beetem on Monday: "(The Herschel case) establishes a lot of the baseline and groundwork in this case. It doesn't resolve everything, but it resolves a lot. Herschel describes the purpose of the appropriations power is to check the executive branch (and is) a check on executive decision-making."

That, she said, includes the power to abolish an office, which is what lawmakers did in Rebman's case.

Moreover, Blake argued, lawmakers also had a right to single Rebman out because the state ended up paying $3.1 million to settle two age- and gender-discrimination cases filed against Rebman.

Former state Rep. Gracia Backer, D-New Bloomfield, who headed the Division of Employment Security from 2009 until Nixon fired her in March 2013, received a $2 million settlement.

Lucinda Guthrie received $1.1 million to settle her complaints that Rebman fired her inappropriately and, after she was re-instated after Rebman became an ALJ, that then-Division Director Ken Jacob had passed over Guthrie in making promotions.

Blake explained, "Simply put, addressing the public perception of age and sex discrimination, we believe, is not merely a substantial justification (for Rebman's removal as an ALJ), but should be considered a compelling justification in these circumstances."

She said letting Rebman keep his job would violate the "public interest in perceiving quasi-judicial officers to have integrity (and) to be impartial. The fact of these settlements alone, the public and the Legislature are entitled to draw their own conclusions."

However, Rebman's lawyer, J. Andrew Hirth - a former deputy general counsel in the attorney general's office - told Beetem that Rebman had not been involved in the attorney general's decision to settle the cases, and never had testified in them because there had been no trial.

"He had no say in it," Hirth said. "And in that settlement, there's no expression of liability. The argument is, basically - someone was accused of something, therefore that is substantial justification for passing a 'special law,' and that can't be the (legal) standard."

One of Rebman's arguments for keeping his job is that the appropriations bill that affected only his position is a "special law" forbidden by the Missouri Constitution.

"The Legislature is not allowed to pass a special bill when a general one could work," Hirth said, noting a 1911 Missouri Supreme Court case still provides the correct guidance.

In that case, lawmakers said an appropriation for the Fish and Game Commission could be spent only if the current director was gone from the office, and the state Supreme Court rejected that as a prohibited special law.

While the Legislature does have authority to distribute money, Hirth added: "There are limits to that power. It has to appropriate within constitutional limits."

However, Blake countered: "We think it's not a special law," because that would apply only if lawmakers had directed "specific people to vacate an office but allowed the office to remain open to other people."

In Rebman's case, she argued, the appropriation bill didn't "simply say one person was disqualified from holding this office - it reduced the funding and legislatively abolished the office."

Beetem gave no indication when he'll rule, but said he wanted to make his decision a final one so there could be an appeal.

He gave Hirth and Blake until Wednesday afternoon to submit proposed orders for him to consider.