ATTORNEY GENERAL LOVING HAS ASKED ME TO RESPOND TO YOUR RECENT QUESTIONS WHICH ARE RESTATED AS FOLLOWS:
1. WILL THE PROVISIONS OF HOUSE BILL NO. 1973 AUTHORIZE THE MANDATORY PAY INCREASE FOR THE DIRECTOR OF THE DEPARTMENT OF CIVIL EMERGENCY MANAGEMENT WITHOUT REGARD FOR THE PERIOD OF TIME HE HAS BEEN EMPLOYED BY THE STATE?
2. WILL THE PROVISIONS OF HOUSE BILL NO. 1973 AUTHORIZE THE DISCRETIONARY PAY INCREASE FOR THE DEPARTMENT'S DIRECTOR WITHOUT REGARD FOR THE PERIOD OF TIME HE HAS BEEN EMPLOYED BY THE STATE?
YOU HAVE COMMUNICATED TO THIS OFFICE THAT YOUR DIRECTOR WAS APPOINTED TO THAT POSITION AND BEGAN SERVING ON SEPTEMBER 25, 1992 AND THAT ALL EMPLOYEES OF THE AGENCY ARE TO RECEIVE THE DISCRETIONARY PAY INCREASE RETROACTIVE TO JULY 1, 1992.
I HAVE REVIEWED HOUSE BILL 1973 (CHAPTER 367 OF THE 1992 SESSION LAWS) AND DETERMINED THAT SECTION 26 IS THE CONTROLLING PROVISION. IT PROVIDES IN PART AS FOLLOWS:
"SECTION 26. EFFECTIVE DECEMBER 1, 1992, THE CHIEF EXECUTIVE OFFICER FOR ANY AGENCY, AS DEFINED IN THE OKLAHOMA PERSONNEL ACT, THAT IS NOT LISTED IN 74 Ohio St. 3601 OF TITLE 74 OF THE OKLAHOMA STATUTES AND ANY OTHER EMPLOYEE WHOSE SALARY IS SET BY LAW, SHALL BE AWARDED A PAY INCREASE OF TWO AND ONE-HALF PERCENT (2.5). NOTWITHSTANDING ANY SALARY LIMITATION PROVIDED IN THE ANNUAL APPROPRIATION FOR THE AGENCY. IF A DISCRETIONARY PAY INCREASE FOR ALL ELIGIBLE EMPLOYEES OF AN AGENCY AS DEFINED IN THE OKLAHOMA PERSONNEL ACT, THAT IS NOT LISTED IN 74 Ohio St. 3601 OF TITLE 74 OF THE OKLAHOMA STATUTES, IS AWARDED FOR FISCAL YEAR 1993, PURSUANT TO SECTION 23 OF THIS ACT, THE SALARY OF THE CHIEF EXECUTIVE OFFICER AND ANY OTHER EMPLOYEE WHOSE SALARY IS SET BY LAW FOR ANY SUCH ENTITY SHALL BE INCREASED TWO AND ONE-HALF PERCENT (2.5%) NOTWITHSTANDING ANY SALARY LIMITATION FOR SUCH SALARY PROVIDED IN THE ANNUAL APPROPRIATION FOR THE AGENCY. (EMPHASIS ADDED.)"
PURSUANT TO 63 Ohio St. 683.4 OF TITLE 63 OF THE OKLAHOMA STATUTES, THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF CIVIL EMERGENCY MANAGEMENT IS THE DIRECTOR. FURTHER, SAID AGENCY IS NOT ONE OF THE AGENCIES LISTED IN 74 Ohio St. 3601 OF TITLE 74 OF THE OKLAHOMA STATUTES. THEREFORE, PURSUANT TO SECTION 26 ABOVE, THE DIRECTOR, AS THE CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT, SHALL BE AWARDED A PAY INCREASE OF 2 1/2% IN SPITE OF ANY SALARY LIMITATION PROVIDED IN THE ANNUAL APPROPRIATION FOR THE AGENCY. SECTION 23 OF H.B. 1973, INCLUDING ITS SUBSECTION O WHICH ESTABLISHES ELIGIBILITY REQUIREMENTS FOR CERTAIN CLASSIFIED AND UNCLASSIFIED EMPLOYEES TO RECEIVE THE MANDATORY AND DISCRETIONARY PAY RAISES, DOES NOT APPLY TO THIS POSITION. FURTHER, SECTION 26 PROVIDES THAT IF ALL ELIGIBLE EMPLOYEES OF THE AGENCY ARE PAID THE DISCRETIONARY RAISE, THEN THE DIRECTOR, AS CHIEF EXECUTIVE OFFICER, IS ALSO ENTITLED TO RECEIVE THE SAME 2.5 RAISE, IN SPITE OF ANY SALARY LIMITATION IN THE ANNUAL AGENCY APPROPRIATION.
(JOHN M. CRITTENDEN)