December 3, 1998
Mr. Ronald G. Penny State Personnel Director Office of State Personnel 116 West Jones Street Raleigh, North Carolina
RE: Advisory Opinion: N.C.G.S. 126-7(c)(4b); State Employees; Entitlement to COLA; SB 1366
Dear Ron:
In your letter of November 16, 1998, you request our opinion as to the interpretation and application of certain provisions of Session Law 1998-212 (SB 1366), An Act to Modify the Current Operations and Capital Improvements Appropriations Act of 1997 and to Make Other Changes in the Budget Operation of the State.
Specifically, your questions concern amendments to N.C.G.S. 126-7(c)(4b) included in the Act. These amendments relate to the cost-of-living adjustment (COLA) for State employees who are in the final stages of the State’s disciplinary process. Prior to the 1998 amendments, N.C.G.S. 126-7(c)(4b) provided that only an employee "who is not involved in the final written stage of the disciplinary procedure shall receive a cost-of-living adjustment." Based on this statute, employees who had received final warnings in the State’s disciplinary process did not receive the 1997 COLA. The 1998 amendment provides that only an employee "who has not received a suspension without pay or demotion that has not been resolved shall receive a cost-of-living adjustment." The effective date of this amendment gives rise to your question. It reads as follows:
This section becomes effective July 1, 1998, and applies to any employee involved in the final written stage of a disciplinary procedure on or after January 1, 1997.
You suggest that this language can be construed several ways:
- (1)
- Affected employees would receive the 1998 COLA of 1%, based on their June 30, 1998, salary. The COLA would become effective July 1, 1998, and employees would receive retroactive pay to that date.
- (2)
- Affected employees would receive the 1997 COLA of 2%, based on their June 30, 1997, salary. The COLA would become effective July 1, 1998. The 1998 COLA of 1% would also be included, if applicable, effective July 1, 1998. Employees would receive retroactive pay from July 1, 1998, for both the 1997 and 1998 COLA.
- (3)
- Affected employees would receive the 1998 COLA, retroactive to July 1, 1998, and the 1997 COLA, retroactive to July 1, 1997.
It is our opinion that the first interpretation is correct. While it may be argued that the language of the 1998 legislation supports extending the entitlement back to the 1997 COLA, we do not believe this argument has merit. Granted the primary purpose of the legislation is to extend the entitlement to the COLA to employees who otherwise would not receive the increase because of documented poor performance. However, neither the effective date provision nor any other provision of the 1998 legislation manifests a clear intention to repeal N.C.G.S. 126-7(c)(4b) retroactively. Likewise the 1998 legislation does not manifest a clear intention to provide retroactive pay raises to the affected employees. Absent a clear expression of legislative intent, we believe the affected employees are entitled to receive only the 1% COLA for 1998.
signed by:
Ann Reed Senior Deputy Attorney General
Lars F. Nance
Special Deputy Attorney General