June 27, 1994
Robert Austin, Superintendent Alexander County Schools
P. O. Box 128 Taylorsville, NC 28681
Re: Advisory Opinion; Public Schools; Teachers; Career Development Pilot Program; G.S. 115C-238.1 et seq.; G.S. 115C-363.1 et seq.; 1991 Sess. Laws ch. 900 (1992); 1993 Sess. Laws chs. 263 and 321.
Dear Mr. Austin:
The Alexander County School System was one of the 16 public school systems selected to participate in the Career Development Pilot Program established by the General Assembly in 1985. G.S. 115C-363 et seq. Many of the teachers in the Alexander County System attained Career I or Career II status under that Pilot Program and received the enhanced salaries provided for by G.S. 115C-363.11(b). Questions have been raised by some of these teachers regarding their right to be "held harmless" with regard to the enhanced pay they received for earning Career I or Career II status under the Career Development Pilot Program. As superintendent for the Alexander County Schools you have asked for our opinion.
This is a complex question requiring an analysis of several acts of the General Assembly. First among these acts is G.S. 115C-363.11(c). It provides:
If the pilot programs established pursuant to the provisions of G.S. 115C-363 are discontinued, any employee who has received a salary increment pursuant to the Career Development Plan shall continue to be paid the salary increment; however, the employee shall not receive any additional state annual increment, cost of living increment, or other salary increment unless the employee’s salary would otherwise be less than the salary applicable to him on the base salary schedule. (emphasis added)
The obvious intent of the General Assembly in enacting this section was to provide an incentive to teachers to participate in this pilot program by assuring them that discontinuation of the pilot program would not result in the loss of the enhanced pay they had earned by achieving Career I or Career II status. Consistent with this intent, discontinuation of the Career Development Program as a pilot program is the event that triggers the rights of teachers who have earned Career I or Career II status to be held harmless. At the time the Pilot Program was enacted there were several events which would have resulted in the Program’s discontinuation in some or all of the participating school systems. These include: (1) a decision by a participating system to withdraw from the Pilot Program; (2) a decision by the General Assembly to convert the Pilot Program to a permanent program; (3) a decision by the General Assembly to allow participating school systems to convert from the Pilot Program to a permanent program and a subsequent decision by a participating system to make that conversion; and (4) a decision by the General Assembly to repeal the Pilot Program.
On August 12, 1989, the General Assembly enacted the "School Improvement and Accountability Act of 1989". 1989 Sess. Laws ch. 778, codified as G.S. 115C-238.1 et seq. That Act established a permanent, though optional, program. It authorized, but did not require, local school systems to develop school improvement plans, G.S. 115C-238.3, and provided for certain benefits for school systems deciding to develop such plans. See G.S. 115C-238.2. Significantly, that Act also authorized, but did not require, local school systems to establish a differentiated pay plan for teachers, including a differentiated pay plan based on "The Career Development Pilot Program, G.S. 115C-363 et seq." G.S. 115C-238.4. We understand that the Alexander County School System elected to adopt a differentiated pay plan beginning with the 1990-91 school year and subsequent years, and that it selected the Career Development Pilot Program as the method for providing differentiated pay for teachers. In our opinion, that decision had the effect of discontinuing the Career Development Pilot Program in Alexander County, as a pilot program, and of converting it into a permanent, though optional, program. That decision in turn had the effect of triggering the "hold harmless" provision of G.S. 115C-363.11(c) in Alexander County. Thus, the scope of the "hold harmless" provision must be examined.
This "hold harmless" provision is not open-ended. By the plain words of G.S. 115C-363.11(c), the only teachers entitled to its benefit are those who had earned Career I or Career II status prior to the time the Pilot Program was "discontinued" as a pilot program in Alexander County. Teachers who subsequently earned Career I or Career II status did not earn that status under the Career Development Pilot Program; they earned it under the differentiated pay provision of G.S. 115C-238.4. Thus, the only teachers in Alexander County entitled to the benefit of G.S. 115C363.11(c) are those who had earned Career I or II status before the end of the 1989-90 school year. Moreover, the "hold harmless" provision in G.S. 115C-363.11(c) does not provide these teachers with the benefit of their enhanced salaries in perpetuity. It is limited to the difference, if any, between the 1989-90 salary earned by a Career I or Career II teacher in Alexander County under the enhanced salary schedule established by G.S. 115C-363.11(b) and the salary earned by those teachers for subsequent school years. Presumably, the salaries of these teachers were as high as or higher in subsequent years than their 1989-90 salaries as a consequence of across-theboard salary increases provided by the General Assembly.
Another possible "hold harmless" provision appears in the 1992 Current Appropriations Act and apparently applies to the 1993-94 fiscal year. It provides:
With regard to the amount of State funds appropriated in subsequent fiscal years for local school administrative units that were career development pilot units, it is the intent of the General Assembly that any reductions in appropriations not result in teachers receiving less in salary and State- funded bonuses, than they received on a monthly basis during the prior fiscal year so long as the teachers qualify for bonuses under the local differentiated pay plan. 1991 Sess. Laws ch. 900, § 71(e)(1992).
This section is ambiguous. On the one hand, it can be read as a new or independent guarantee that teachers in former career pilot units not receive a lower total salary in the 1993-94 fiscal year than they received in the 1992-93 fiscal year so long as they meet the requirements for a bonus under the differentiated pay plan in effect for the 1993-94 fiscal year. On the other hand, it can be read as simply a legislative declaration that the General Assembly believed that the level of State appropriations was sufficient to carry out the "hold harmless" provisions of G.S. 115C-363.11(c)
in the former career development pilot systems for the 1993-94 fiscal year. The latter
interpretation, in our opinion, is the most plausible. The intent of the legislature is "with regard to
the amount of State funds appropriated". No intent is directly stated with respect to any salary
guarantee independent of G.S. 115C- 363.11(c). Thus, we do not read this section as a new or
independent "hold harmless" provision. Instead, it should be read simply as a legislative
declaration that the funds it was appropriating were sufficient to carry out G.S. 115C-363.11(c)
for the 1993-94 fiscal year.
Edwin M. Speas, Jr.
Senior Deputy Attorney General
Thomas J. Ziko
Special Deputy Attorney General