The opinion
SEILER, Judge
(concurring).
At first glance the principal opinion seems to remove the teeth from the appeal procedure established under the merit system, because its practical effect is that the state can discharge employees without the risk that should the discharge prove wrongful the state might have to pay a substantial sum in back salary, a possibility which heretofore has been a strong deterrent to wrongful discharge. I would not want to participate in such a dismantling of the merit system. However, I note that the last paragraph of the opinion refers to the language of Sec. 36.390(5) (1) as indicating the legislative purpose “of making the wrongfully discharged employee whole.” In order to accomplish this goal, it is equitable and should stand as a counter obligation on the part of the state that in determining the compensation due the employee consideration be given to the fees and expenses incurred by the employee in obtaining vindication of his position. This, in my opinion, is a concomitant of the avoidable consequences obligation to which the employee is held and is a legislatively intended sanction vital to the mandate that a merit system employee is not to be discharged except for cause, Sec. 36.390(5).
Support is found for this position in another jurisdiction which has considered the question. For example, the New Jersey merit system statute is similar to ours, and provides that the civil service commission (similar to our personnel advisory board) shall conduct hearings on appeals from discharges. One of the alternatives available under the New Jersey statute, if the finding is favorable to the employee, is restoration of “his position without loss of pay.” N.J.S.A. 11:15-6. Under this provision the New Jersey court has held that “ . . . it would be equitable that consideration be given to the fees and expenses necessarily incurred by the appellants in obtaining vindication . . . ”, Mastrobattista v. Essex County Park Comm., 46 N.J. 138 , 215 A.2d 345 , 351 (1965). “The power possessed by the Commission under the second paragraph of R.S. 11:15 — 6, N.J.S.A. to award back pay less what was earned in outside employment during the period of illegal dismissal also serves as authority for increasing the net salary award by any sum that will reasonably compensate the vindicated employee for expenses necessarily related to and incurred in the advancement of his cause . ”, Mason v. Civil Service Commission, 51 N.J. 115 , 238 A.2d 161, 168 (1968).
In my opinion, the Personnel Advisory Commission should be directed to do the same here.
In the case before us, there has been one evidentiary hearing before the Personnel Advisory Board and three court hearings —one each in the circuit court, the court of appeals and the supreme court, these proceedings spanning over three years thus *146 far. The legal services for the particular agency from which the employee was discharged (here the Missouri State Training School for Boys) are provided by the state, and the State Training School can carry the case as far as it desires without concern as to fees or expenses. Here, for example, both the appeals to the court of appeals and to this court were by the State Training School. But the employee must provide his own counsel fees and litigation expense and, speaking realistically, could not possibly have proceeded in this matter without a lawyer. His necessary legal fees and expenses are bound to be substantial. Unless these are to be considered, reinstatement will prove to be an empty and expensive victory for the employee, and the same will be true for others who may hereafter be wrongfully discharged.
Merit system employees, the same as everyone else, must have income to live and support their families. Generally speaking, their salaries are not large to begin with. Necessarily, any discharged employee must soon find work elsewhere while his appeal is working its way through the system, or suffer hardship. The discharged employee cannot afford to forego employment elsewhere and will go to work as soon as he can, so that the offsets or credits earned in other work will largely cancel out what his pay would have been had he not been discharged.
The result, then, is that unless fees and expenses are considered in determining what will make the vindicated employee whole, no one except a wealthy merit system employee will ever be able to afford to contest his discharge. If fees and expenses are not allowed, the value of the right of appeal is emasculated and supervisors and superintendents can discharge merit system employees with no likelihood, as a practical matter, that their discharges will ever be challenged, because to do so successfully will cost the employee far more than any back pay allowed.