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THEATTOIZNEYGENEEZAL
OFT'EXAS
November 6, 1963
Honorable John H. Winters Opinion No. c-172
Conunlssloner
State Department of Public Re: Whether the State Depart-
Welfare ment of Public Welfare is
Austin, Texas authorized to continue
their agreements with the
Federal Government as re-
Dear Mr. Winters: gards the Merit System.
Your opinion request states that the State Department
of Public Welfare, hereinafter referred to as the Department,
receives substantial grants-in-aid necessary to its operation
from the Federal Government. As a condition of qualifying for
such grants, ,agreements are made with the Federal Government which
include the requirement that the Merit System of Personnel Adminis-
tration be followed by the Department. You state that:
"Over a period of years the State Depart-
ment of Public Welfare has officially operated
under a Merit System of Personnel Administration
as required by Titles I, IV, Section 3 of V, X,
and XIV of the Federal Social Security Act
as authorized by Section 4, Subsection (1Oj %!'
the Public Welfare Act of 1941, as amended, being
House Bill No. 611, Acts of the 47th Legislature,
Regular Session, 1941, and being codified as Arti-
cle 695~, Vernon's civil Statutes."
Your request states that under the above Merit System
salary increases are based on written satisfactory evaluation of
work performed and are not automatic , and therefore in principle
are similar to the Merit Salary Increases provisions in Article V,
Section 1, Subsection L of House Bill 86, Acts of the 58th Legis-
lature, 1963. However, the provisions of these two plans are not
identical, particularly as to the length of time requlred between
merit increases, the initial date that such merit can be recognized,
and the number of employees eligible for such recognition.
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Hon. John Ii. Winters, Page 2 (C- 172 )
Article V, Section 1 of House Bill 86 states that,
except where otherwl .se speclfically.provided, expenditures for
employees* salaries in classified positions shall be governed
bye and be in conformity with the provisions of such Section.
However, within the provisions of House Bill 86 relating to
the Department, the following appears at page 111-186:
“Salary adjustments and merit system in-
creases shall be governed by agreements with
the Federal Government provided, however, that
such agreements do not exceed the provisions
in this Act governing the operation’of the
State Employees Classlflcation Plan.”
You therefore ask our opinion concerning the following
question:
“DO the Statutes and the Appropriation Act
permit a Salary Classification Plan under the
Merit System Rule with a beginning step for each
position not above Step 1 of the State Salary
Classification Schedule and for Intermedlate
steps to which employees may be advanced at
stated intervals as may be agreed by the State
Department of Public Welfare and the Federal
Agencyso long as the maximum salary paid does
not exceed the maximum for the group to which
the employee Is assigned as provided in the
State Classification Salary Schedule under the
State Salary Classification Plan?”
The use of the Merit System by the Department was
first authorized in 1941 when the Le islature enacted Article
695c which provides at Section 4 (10 7 that the Department shall:
“(10) Have authority to establish by rule
and regulation a Merit System for persons em-
ployed by the State Department of Public Welfare
in the administration of this Act; and shall pro-
vide by rule and regulation for the proper operation
and maintenance of such Merit System on the basis
of efficiency and fitness; and may provide for the
continuance in effect of any and all actions here-
tofore taken in pursuance of the purposes of this
subsection. The State Department is empowered and
authorized to adopt regulations that may be necessary
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Hon. John H. Winters, page 3 (C472 )
to conform to the Federal Social Security Act
approved March 14, 1935, as emended, and shall
have the power and authority to provide for the
maintenance of a Merit System in conjunction
with any Merit System applicable to any other
State agency or agencies operating under the
said Social Security Act as amended.
"The Social Security Board shall exercise
no authority with respect to the selection, ten-
ure of ,office, and compensation of any individual
employed in accordance with such methods."
After some twenty years of operation by the Department
under the Merit System Rule, the Legislature a ain acknowledged
such in the !Position Classification Act of'19 %1, ",codified as
Article 6252-11, Vernon's Civil Statutes, which recites in Sec-
tion 5 that:
!I
. . .
"The preceding two paragraphs of this
Section, however, shall not be construed as
abrogating statutory authorizations for cer-
tain State agencies to operate under employee
merit systems as a condition for qualifying
for Federal grants-in-aid; and all such merit
systems as have been or may hereafter be agreed
to by the respective State agencies and agencies
of the U.S. Government shall be in full force
and effect, subject only to the applicable laws
of this State."
In addition, it is also observed that while the Depart-
ment is covered by the classification of employees, Its employees
are not fully within the salary schedule accompanying such clas-
sification. In nearly every instance maximum salaries are no high-
er than an amount equal to Step 3 of the Salary Schedule, and. there-
fore starting salaries usually fall below that prescribed by Step
1. The only counterbalance to these deficiencies is the Merit
System which allows for the continued and regular recognition of
meritorious service.
A consideration of all of the foregoing factors leads
us to the conclusion that the Legislature was well aware that the
Department's operation is substantially affected by agreements with
the Federal Government, and that it recognized the condition of a
Merit System in order to qualify for such grants-in-aid.
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Hon. John H. Winters, page 4 (C-172 )
Further, in viewing the Classification System broadly
as a plan to place all State employees of a same class on an equal
basis as far as possible , we are unable to perceive how the contin-
uation of the agreements with the Federal Government will violate
this principle with the fact in mind that the Department is already
at a comparative disadvantage salary-wise.
Therefore, in consideration of all of these factors,
it is our opinion that the Department's agreement as set forth
in the question presented is authorized and that a continuation
of the Merit System is authorized.
SUMMARY
Agreements between the State Department of
Public Welfare and the Federal Government, as
regards the Merit System , are authorized so long
as beginning salaries do not exceed Step 1 and
maximum salaries do not exceed Step 7 of the
Salary Classification Schedule.
Very truly yours,
WAGGONER CARR
Attorney General
pp:mkh Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Paul Robertson
Nicholas Irsfeld
George Gray
APPROVEDFOR THE ATTORNEY
GENERAL
BY: Stanton Stone
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