Power of State Board of Education to Establish Length of Workweek

Subject:

Requested By: James O. Barber, Controller State Board of Education

Questions: (1)

Does the State Board of Education have the power to prescribe the number of hours which a noncertified employee of a local board of education must work in order to receive the salary provided by the State and set forth in the State Board’s Salary Schedule?

(2)

Does the State Board of Education have the power to prescribe the number of hours which a certified employee of a local board of education must work in order to receive the salary provided by the State and set forth in the State Board’s Salary Schedule.

Conclusion: (1)

Yes.

(2)

Yes.

The State Board of Education has adopted salary schedules for all employees of local boards of education paid from funds made available by the General Assembly. Two basic types of salary schedules have been adopted: one set for professional employees who must hold certificates from the State Board as a prerequisite to their employment and another set for employees not required to hold certificates. Neither the salary schedules for certified employees nor the salary schedules for noncertified employees prescribe the number of hours which an employee must work during a week in order to be entitled to the salary established by the applicable salary schedule.

As Controller of the State Board you have asked whether the State Board has authority to prescribe the number of hours which certified and noncertified employees must work in order to receive the salary prescribed by the salary schedules. The authority of the State Board to prescribe the required hours of work under the salary schedules for noncertified employees will be addressed first.

The General Assembly has directed the State Board of Education to adopt salary schedules for support personnel (defined as all public school employees not required to be certified) and has "authorized and empowered" the State Board "to adopt all necessary rules for full implementation of all schedules to the extent that State funds are made available for support personnel." G.S. § 115C-12(16)(a) If a rule prescribing the number of hours of work for which the salary schedules are intended to provide compensation is "necessary" for implementation of the salary schedule for noncertified employees then we think G.S. § 115C-12(16)(a) plainly authorizes the State Board to prescribe such a rule. While that determination is for the State Board, it would seem that the State Board could legitimately determine that such a rule is necessary in order to assure that the amount of work for which those salaries is intended to provide compensation is performed and to assure that all similarly situated noncertified employees of local boards receive the same salary for the same number of hours of work. Moreover, we think it likely that the General Assembly intended the State Board to adopt such a requirement. G.S. § 115C-12(16(b) and (c) provide: "The Board shall classify these support positions in terms of uniform pay grades included in the salary schedule of the State Personnel Commission." The State Personnel Commission salary schedule is based on a 40-hour workweek. See 25 NCAC 1C.0501(a) which provides: "The standard workweek for employees subject to the Personnel Act is forty hours per week."

The authority of the State Board to establish salary schedules for certified employees of local boards of education paid from State funds is derived both from the Constitution and the General Statutes. Article IX, § 5 of the Constitution provides that the State Board "shall make all needed rules and regulations" for the supervision and administration of the free public school system, subject to laws enacted by the General Assembly. This broad power includes the power "to regulate the grade, salary and qualifications of teachers" as provided in former Article IX, § 9 of the Constitution. Guthrie v. Taylor, 279 N.C. 703, 710, 185 S.E.2d 193 (1971), cert. den. 406

U.S. 920 (1972). This authority has been confirmed by the General Assembly. See G.S. § 115C12(9) which confers on the State Board the authority to "certify and regulate the grade and salary of teachers and other school employees" and G.S. § 115C-272(a), 284(c), 296 and 315(d) which provide that the salaries of superintendents, principals, supervisors, teachers and all other certified employees shall be "fixed and determined" by the State Board. These statutes, especially in view of the Constitution, would seem to confer authority upon the State Board to determine the number of hours of work required to earn the salaries prescribed by the State Board for certified employees. The authority to fix salaries without the authority to also fix the amount of work required to earn those salaries would be hollow indeed.

Other statutes, however, appear in conflict with the principle that the authority to fix a salary carries with it the authority to fix the amount of work required to earn that salary. G.S. § 115C84(a) provides, in pertinent part: "The length of the school day shall be determined by the several local boards of education for all public schools in their respective school administrative units, and the minimum time for which teachers shall be employed in the school room or on the school grounds supervising the activities of children shall not be less than six hours: Provided, the several local boards of education may adopt rules and regulations allowing handicapped pupils, kindergarten pupils, and pupils attending the first, second and third grades to attend school for less than six hours." See also G.S. § 115C-47(11) which provides: "Local boards of education shall determine the length of the school day . . . ." These statutes are subject to two interpretations: one that local boards of education only have authority to establish the length of the school day for students; the other that local boards have authority to determine the length of the school day for students and to determine the length of the work day for teachers. For several reasons we are of the opinion that these statutes only give local boards the authority to establish the length of the school day for students. First, the principal thrust of G.S. § 115C-84(a) is to the length of the school day for students and the reference to "the minimum time for which teachers shall be employed" is made in that context. Second, it seems illogical to separate the authority to establish the level of salaries from the authority to establish the amount of work required to earn those salaries.Third, it seems inequitable for a teacher in one school system to work a shorter length of time than a similarly situated teacher in another system for the same amount of State money. Fourth, this interpretation avoids any conflict beween G.S. § 115C-84(a) and G.S. § 115C-12(9), 272(a), 284(c), 296 and 315(d) and, thus, is consistent with the rule of statutory construction that statutes dealing with the same subject shall be harmonized if possible in order to give effect to each. Accordingly, it is our opinion that Article IX, § 5 of the Constitution and

G.S. § 115C-12(9), 272(a), 284(c), 296 and 315(d) give the State Board of Education the authority to establish salary schedules for all certified employees and to establish the amount of work required to earn those salaries. G.S. § 115C-47(11) and 84(a) give local boards of education authority over the length of the school day for students, but do not give local boards authority to establish the length of the work day for State funded employees.

LACY H. THORNBURG ATTORNEY GENERAL

Andrew A. Vanore, Jr. Senior Deputy Attorney General

Edwin M. Speas, Jr. Special Deputy Attorney General