Mr. Mark Riable, Chair Board of Trustees Arkansas Schools for the Blind and Deaf P.O. Box 3811 Little Rock, AR 72203
Dear Mr. Riable:
You have requested an official Attorney General's opinion concerning the eligibility of employees of the Arkansas School for the Deaf for a pay increase under Act 1461 of 2001.
Your question is:
Since it is a requirement for employees of the Arkansas School for the Deaf to attain a level of proficiency in American Sign Language within three years of the date of their employment, are they eligible for a pay increase under Act 1461 of 2001?
RESPONSE
It is my opinion that employees of the Arkansas School for the Deaf who occupy positions for which proficiency in American Sign Language is required as a secondary minimum qualification are eligible to receive a pay increment under Act 1461 of 2001.
The pertinent provision of that Act states:
(G)(1) Any employee whose specific job assignment requires the skill to communicate in a language other than English, including American Sign Language, and which skill is required as a secondary minimum qualification by the classification specification for the position occupied by the employee, shall be eligible to be paid up to an additional ten percent (10%) of the employee's annual salary as set by Arkansas Code 21-5-709.1
Acts 2001, No. 1461, Section 5, amending A.C.A. § 21-5-211(b).
Whether any particular position carries a requirement of proficiency in American Sign Language as a secondary minimum qualification is a question of fact. (It should be noted that the term "secondary minimum qualification," as used in the above-quoted provision, is not defined.) Accordingly, each position at the Arkansas School for the Deaf must be examined separately to determine whether, as a matter of fact, the position carries such a requirement. The holder of each position that does carry this requirement is eligible, under the above-quoted provision, to receive the described pay increment. The availability of the increment is, of course, "[s]ubject to funds and appropriations being provided[.]" A.C.A. § 21-5-211(b). It should be noted that such pay increments are not deemed to exceed the maximum allowable salary for these positions. See A.C.A. § 21-5-211(b)(G)(2), as amended by Acts 2001, No. 1461, Section 5. It should also be noted that if an employee who is eligible for the increment moves into a position that does not qualify for the increment, the employee will revert, on the effective date of the change in positions, to the salary the employee would otherwise receive. A.C.A. §21-5-211(b)(G)(3), as amended by Acts 2001, No. 1461, Section 5.
Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
1 Although the Act refers, thus, to "Arkansas Code 21-5-709," this reference appears to be erroneous, the intended reference appearing to be to A.C.A. § 21-5-209.