RE: ATTORNEY GENERAL OPINION NO. 88-075 FOLLOW-UP LETTER
ATTORNEY GENERAL HENRY HAS RECEIVED YOUR RECENT LETTER CONCERNING ATTORNEY GENERAL OPINION NO. 88-075, IN LIGHT OF THE TERMS OF OKLAHOMA MERIT PROTECTION RULE NO. 3.5 AND HOUSE BILL NO. 1557. HE HAS AUTHORIZED ME TO RESPOND TO YOU IN THE FORM OF THIS INFORMATIONAL LETTER.
AS YOU ARE AWARE, THE ISSUES THAT YOU RAISE IN YOUR MOST RECENT LETTER WERE FULLY CONSIDERED BY THE ATTORNEY GENERAL AT THE TIME THAT OPINION NO. 88-075 WAS IN THE DRAFTING PROCESS. THAT OPINION CONSIDERED WHETHER THE DIRECTOR OF STATE FINANCE WAS LAWFULLY EMPOWERED TO DISAPPROVE OR DISALLOW SALARY INCREASES TO EMPLOYEES OF THE OKLAHOMA POLICE PENSION AND RETIREMENT BOARD. THE OPINION NOTED THE LIMITATIONS EMPLACED UPON THE STATE DIRECTOR OF FINANCE BY THE LEGISLATURE, AND CONCLUDED BY ADVISING THAT OFFICE DOES NOT CARRY WITH IT THE AUTHORITY TO DISALLOW OR REFUSE TO PAY SUCH SALARY INCREASES AS REQUESTED BY THE AGENCY.
YOU NOW ASK FOR CLARIFICATION AS TO WHETHER IT IS PERMISSIBLE FOR AN AGENCY OF THE STATE THAT EMPLOYS UNCLASSIFIED PERSONNEL TO GRANT PAY INCREASES IN EXCESS OF FIVE PER CENT, GIVEN THE TERMS OF RULE 3.5 OF THE RULES OF THE OFFICE OF PERSONNEL MANAGEMENT.
TITLE 74 O.S. 840.16(A) GENERALLY PROVIDES THAT THE ADMINISTRATOR OF THE OFFICE OF PERSONNEL MANAGEMENT IS DIRECTED TO DEVELOP AND PUBLISH A SALARY SCHEDULE FOR MERIT SYSTEM EMPLOYEES WHICH REFLECTS THE BASE SALARY OR WAGE OF THE FIRST STEP IN EACH GRADE. SECTION 840.16(B) GOES ON TO ADD:
"B. ALL STATE AGENCIES WHO EMPLOY PERSONNEL IN THE EXEMPT OR UNCLASSIFIED SERVICE OF THE STATE, WHOSE SALARIES ARE NOT PRESCRIBED BY LAW, SHALL ESTABLISH SALARY SCHEDULES FOR SUCH EMPLOYEES THAT ARE IN CONSONANCE WITH THOSE OUTLINED ABOVE."
MERIT SYSTEM OF PERSONNEL ADMINISTRATION RULE 3.5, AS EFFECTIVE FEBRUARY 9, 1987, STATES, IN THIS REGARD:
"PERFORMANCE PAY SHALL NOT BE AUTOMATIC OR RETROACTIVE. ALL INCREASES SHALL BE BASED ON PERFORMANCE AND SHALL NOT BE AT THE DISCRETION OF THE AGENCY, ONLY AS PROVIDED FOR BY LAW."
TO THE DEGREE THAT RULE 3.5 MIGHT BE INTERPRETED AS ESTABLISHING A GENERAL POLICY THAT NO PAY INCREASES SHALL BE AUTOMATIC, SUCH A POLICY WOULD BE SUPERCEDED BY THE CLEAR LEGISLATIVE MANDATE OF THE BILL. IN SHORT, NEITHER THE TERMS OF RULE 3.5 NOR THE LANGUAGE OF HOUSE BILL NO. 1557 RESTRICT AN AGENCY FROM GRANTING PAY RAISES IN EXCESS OF FIVE PER CENT AS TO UNCLASSIFIED EMPLOYEES PAID OUT OF NONAPPROPRIATED FUNDS.
(MICHAEL SCOTT FERN) (MERIT PROTECTION SYSTEM)