Authority to Set Salaries

Subject:

Requested By: Phillip J. Kirk, Jr. Secretary Department of Human Resources

Jeffrey R. Becker Assistant Personnel Director Department of Correction

Questions: (1)

Does the State Personnel Commission have the authority to determine whether particular educational positions in the Department of Human Resources and the Department of Correction should be classified as exempt from the State Personnel Act?

(2)

Do the Department of Human Resources and the Department of Correction have the authority to set salary schedules for their educational personnel exempt from the State Personnel Act under

G.S. 126-5(c3)?

(3) Must the salary schedules established by the Department of Human Resources and the Department of Correction for educational personnel exempt from the State Personnel Act correspond exactly to the salary schedules established by the State Board of Education for public school employees?

Conclusions: (1)

Yes.

(2)

Yes.

(3)

The salary schedules must correspond to the salary schedules established by the State Board of Education for public school employees except in cases where the duties of employees do not correspond to the duties of public school employee positions. In such cases the salary schedule should conform as closely as possible to the public school salary schedules.

Prior to July 1, 1986 persons employed by the Departments of Human Resources and Correction in teaching and related educational positions were paid in accordance with a salary schedule established by the State Personnel Commission. The 1986 Session of the General Assembly changed the law in this regard. G.S. 126-5(c3) was amended effective July 1, 1986 to provide as follows:

Except as to the policies, rules, and plans established by the Commission pursuant to G.S. 1264(4), 126-4(5) and 12-4(6), and except as to the provisions of Articles 6 and 7 of this Chapter, the provisions of this Chapter shall not apply to teaching and related educational classes of employees of the Department of Correction, the Department of Human Resources and any other state department, agency, or institution, whose salaries shall be set in the same manner as corresponding public school employees in accordance with Chapter 115C of the General Statutes.

A number of questions have been raised about the relative authority of the State Personnel Commission, the Department of Human Resources, the Department of Correction, and the State Board of Education to implement the provisions of this statute. The first question concerns the identity of the agency with the authority to determine, in case of a dispute, whether a particular position is or is not a teaching or related educational position exempt from the State Personnel Act. G.S. 126-5(c3) is silent on this point. G.S. 126-5(h), however, provides:

In case of dispute as to whether an employee is subject to the provisions of this Chapter, the question shall be investigated by the State Personnel Office, and the dispute shall be resolved as provided in Article 3 of Chapter 150B.

This statute applies to the question presented. Under this statute the Department of Human Resources and Department of Correction determine initially whether a particular position is a teaching or related education position within the meaning of G.S. 126-5(c3). If an employee disputes that decision, he has a right to appeal to the State Personnel Commission and to have the Commission resolve the dispute.

The second question concerns the identity of the agency with the authority to set salary schedules for persons employed by the Department of Human Resources and the Department of Correction in teaching and related educational positions. Again, G.S. 126-5(c3) is silent on this point. The statute provides that salaries for these employees "shall be set" and generally prescribes the manner in which these salaries will be set, but does not identify the agency that will set these salaries. In our opinion the authority to set these salaries rests with the Secretary of the Department of Human Resources as to employees within the Department of Human Resources and with the Secretary of the Department of Correction as to employees within the Department of Corrrection.

Both the Department of Human Resources and the Department of Correction are "principal departments" under the Executive Organization Act of 1973. G.S. 143B-2(2) and (5). G.S. 143B10(c) provides, in part, as follows:

The head of each principle state department may . . . change the compensation of existing offices and positions as he deems necessary for the efficient functioning of the department, subject to the State Personnel Act. . . .

It is logical that the power to change salaries includes the power to set salary schedules. While the power of the Secretaries of the Department of Human Resources and the Department of Correction in this regard is made subject to the State Personnel Act by G.S. 143B-10, the positions in question are exempt from the State Personnel Act. Therefore, under authority of G.S.

143B-10 the Secretary of the Department of Human Resources and the Secretary of the Department of Correction have authority to set the salary schedules for persons employed by their departments in teaching and related educational positions exempt from the State Personnel Act by G.S. 126-5(c3).

The third question presented concerns the scope of the discretion of the Secretaries of the Department of Human Resources and the Department of Correction in setting salary schedules for persons employed in teaching and related educational positions. We are advised by the Department of Human Resources and the Department of Correction that most teaching and related educational positions in their Departments correspond to positions in the public school system covered by the salary schedules adopted by the State Board of Education, but that some positions do not. For example, the scope of the duties of a principal of a public school are substantially broader in some cases than the duties of the head of an educational component of the Department of Human Resources or the Department of Correction.

G.S. 126-5(c3) provides that the salaries of persons employed by the Department of Human Resources and the Department of Correction in teaching and related educational positions "shall be set in the same manner as set for corresponding public school employees in accordance with Chapter 115C of the General Statutes." This language does not specifically require that the salary schedules for these employees be identical to the salary schedules of public school employees, but this language certainly indicates an intention on the part of the General Assembly that salaries for those persons correspond to the salaries of corresponding public school employees when possible. Further, by choosing this language rather than language specifically mandating identity of salaries between public school employees and similar employees in the Department of Human Resources and the Department of Correction, it appears that the General Assembly recognized that some educational positions in the Department of Human Resources and Department of Correction would not correspond with positions in the public schools in terms of duties and responsibilities and, accordingly should not be compensated at the same rates. Therefore, based upon the language used by the General Assembly in G.S. 126-5(c3) it is our opinion that the Department of Human Resources and the Department of Correction should set salary schedules for their educational employees that are the same as the salary schedules for public school employees, but that the Departments have the authority in those cases where positions do not correspond with public school positions in terms of duties and responsibilities to recognize and account for those differences in setting salary schedules. Where the duties do not correspond, the salary schedules set by the Departments should conform as closely as possible to the salary schedules adopted by the State Board of Education.

LACY H. THORNBURG Attorney General

Edwin M. Speas, Jr. Special Deputy Attorney General

Gail E. Weis Associate Attorney General