June 10, 1994
Mr. Ronald G. Penny State Personnel Commission Administration Building Raleigh, N. C. 27602
RE: Advisory opinion: Authority of OSP to Adjust the salaries of employees in the Telecommunicators’ Class; G.S. 143-16.3
Dear Mr. Penny:
This letter is in response to your letter dated May 13, 1994, received by me on May 20th, and in follow-up to our telephone conversation last week. As your letter states "the essential issue . . . is whether N. C. Gen. Stat. §143-16.3 prohibits [OSP] from [adjusting the salaries of employees in the telecommunicators’] class." The potential problem as you see it is that House Bill 207, Sec. 8 and 9, as introduced in the 1994 Extra Session, proposed a salary adjustment for all Highway Patrol telecommunicators. The bill, which among other things involved appropriating funds from the Highway Fund to the Department of Crime Control for salary adjustments, was not enacted. In April 1994, the Office of State Personnel conducted a study of telecommunicators throughout state government and, based on the study, recommended that the positions be reclassified.
It is uncontroverted that absent H.B. 207’s failure, OSP would be able to implement the Telecommunicators’ Study without legislative approval. Under G.S. 126-1 and 126-4, the State Personnel Commission and the Office of Sate Personnel periodically review and compare salaries of State employees and competitive employers. Chapter 126 clearly gives the State Personnel Commission and the Office of State Personnel the power to establish rules and policies governing personnel matters. See, North Carolina Dept. of Justice v. Eaker, 90 N.C. App. 30, 367 S.E.2d 392, cert. denied, 322 N.C. 836, 371 S.E. 2d 279 (1988)
OSP, under G.S. 126-1 and 126-4, is charged with the responsibility of "maintain[ing] a system of personnel administration that [applies] the best methods as evolved in government and industry". Administrative responsibilities include: position classification and reclassification, maintaining a relative scale, and providing recruitment programs designed to attract employees and promote public employment. G.S. 126-3 and 126-4(1), (4). A job’s paygrade may need review for other than market factor reasons. For example, a problem could exist if the patrol telecommunicator positions were occupied predominately by females and jobs requiring equal work occupied predominately by males were classified at a higher pay grade. See, 29 U.S.C.§206(d), The Equal Pay Act.
G.S. 143-16.3 prohibits an expenditure of funds for purposes which the General Assembly has considered and rejected. H.B. 207, among other things, would have expanded the Department’s budget by an appropriation from the Highway Fund to provide a salary adjustment for all Highway Patrol telecommunicators. A reclassification study of all telecommunicator positions throughout state government by OSP or the State Personnel Commission’s approval of a reclassification of these positions is not the same purpose as H.B. 207. If salary increases result from the reclassifications of telecommunicators in the Highway Patrol, they will come from funds the legislature has previously allotted to the Department of Crime Control and Public Safety. A determination by OSP and the Commission that a reclassification of telecommunicator positions is in order does not cause the expenditure of funds for a purpose rejected by the legislature.
In summary, it is our opinion that the failure of H.B. 207 does not divest your office and the Commission of your statutory authority to insure that State government positions remain competitive with the market. A classification market survey is OSP’s independent responsibility. The purpose of H.B. 207 was to appropriate additional funds to Crime Control from the Highway Fund to adjust the salaries of Highway Patrol telecommunicators. The fact that this bill was not enacted does not mean that every telecommunicator position throughout State government is frozen in grade and that the Office of State Personnel is prohibited from keeping telecommunicator positions competitive with the market.
Ann Reed Senior Deputy Attorney General
Lars F. Nance
Special Deputy Attorney General