May 13, 1993
John Kinlaw Department of Public Instruction Education Building 301 N. Wilmington Street Raleigh, N.C. 27601-2825
RE: Advisory Opinion; G.S. §§ 115C-238.3, .4 and .6 Approval of Differentiated Pay Plans by State Superintendent of Public Instruction
Dear John:
Local school officials have prepared differentiated pay plans for local school employees under authority of G.S. §§ 115C-238.3 and .4 and submitted those plans to the State Superintendent of Public Instruction for his approval pursuant to G.S. § 115C-238.6(a). On behalf of the State Superintendent, you have asked for our advise regarding the standards the State Superintendent should apply generally in approving or disapproving these plans, and regarding certain specific provisions of plans actually proposed by local school officials.
The statutes do not prescribe any specific criteria the State Superintendent is to apply in approving or disapproving differentiated pay plans. In the absence of specified criteria, we must assume the General Assembly intended the State Superintendent to review proposed plans to assure that the plans comply with obligations imposed on local officials in developing plans and to assure that those plans are consistent with the General Assembly’s purpose in authorizing differentiated pay. Essentially two obligations are imposed on local school officials in developing differentiated pay plans: (1) to develop the plans in accordance with the procedures prescribed by
G.S. § 115C-238.3(c); and (2) to "base" plans on one or more of the five types of pay plans listed in G.S. § 115C-238.4(a), or a modification of those types of plans. The purpose differentiated pay plans must be designed to achieve has been prescribed by the General Assembly. That purpose is "to improve student performance." G.S. § 115C-238.1 (describing the "primary goal" of the Performance-based Accountability Program, of which differentiated pay plans are a part, as the "improve[ment] of student performance."). Thus, in deciding whether to approve or disapprove a differentiated pay plan, the State Superintendent should apply three criteria: (1) whether the plan was adopted in accordance with the procedures required by G.S. § 115C-238.3(c); (2) whether the plan is based on one or more of the types of plans listed in G.S. § 115C-238.4(a) or, some modification thereof; and (3) whether the plan is reasonably and rationally related to improved student performance.
With this background, we turn to the specific provisions about which you have sought our advice. In each instance, we assume that the provisions were developed in accordance with required procedures and that the provisions are based on one or more of the types of plans listed in G.S. § 115C-238.4(a).
First, you have asked about provisions of plans providing that employees, at least in part, may earn differentiated pay based on membership in professional organizations. The issue raised by
such provisions is whether they are reasonably and rationally related to improved student
performance. In deciding whether to approve such a provision, the State Superintendent should
determine whether paying employees for mere membership in professional organizations (as
contrasted, for example, with rewarding employees for membership in professional organizations
related to their duties and participating in educational programs offered by those organizations) is
reasonably related to improvement in student performance.
Second, you have asked about provisions providing that employees, at least in part, may earn
differentiated pay based on membership in a specified professional organization. In our opinion,
local school officials may not arbitrarily favor membership in one professional organization over
membership in another for purposes of awarding differentiated pay. See State v. Mems, 281 N.C.
658, 190 S.E.2d 164 (1972) (where an entity is singled out for special treatment, that action must
have a reasonable and rational basis.). There is no obvious rational basis for singling out
membership in one professional organization, to the exclusion of all others, as a basis for
awarding differentiated pay. Before the State Superintendent approves such provisions, we
recommend he require local school officials to demonstrate that a specified organization is the
only professional organization that can contribute to a employees’ professional growth.
Third, you have asked about provisions providing for the payment of differentiated pay based on
years of experience. Experience is one of the two principal factors that determine the regular pay
of employees under the current State Salary Schedule. In authorizing local school officials to
develop differentiated pay plans to provide compensation in addition to that provided by the
State Salary Schedule, we believe the Legislature generally intended that those plans base
differentiated pay on factors other than those already accounted for in the State Salary Schedule,
e.g., contributions to improved student performance. Thus, in deciding whether to approve such
provisions, we recommend that the State Superintendent determine whether such provisions
account for experience in a substantially different manner than experience is already accounted
for under the State Salary Schedule, and that there is a relationship between experience of that
type and improved student performance.
Fourth, you have asked about provisions that make employees not employed during the 1992-93
school year ineligible for the opportunity to earn differentiated pay for their work during the
1993-94 school year. We are unsure as to the basis for denying an employee the opportunity to
earn differentiated pay solely because that employee was not employed the preceding year.
Therefore, unless local school officials can demonstrate some rational basis for denying
employees the opportunity to earn differentiated pay in the 1993-94 school year solely because
they were not employed during the 1992-93 school year, we recommend that the State
Superintendent disapprove such provisions.
Edwin M. Speas, Jr.
Senior Deputy Attorney General