Untitled Texas Attorney General Opinion ( 1963 )

, - THEATTOIZNEYGENEEZAL OFT'EXAS November 6, 1963 Honorable John H. Winters Opinion No. c-172 Conunlssloner State Department of Public Re: Whether the State Depart- Welfare ment of Public Welfare is Austin, Texas authorized to continue their agreements with the Federal Government as re- Dear Mr. Winters: gards the Merit System. Your opinion request states that the State Department of Public Welfare, hereinafter referred to as the Department, receives substantial grants-in-aid necessary to its operation from the Federal Government. As a condition of qualifying for such grants, ,agreements are made with the Federal Government which include the requirement that the Merit System of Personnel Adminis- tration be followed by the Department. You state that: "Over a period of years the State Depart- ment of Public Welfare has officially operated under a Merit System of Personnel Administration as required by Titles I, IV, Section 3 of V, X, and XIV of the Federal Social Security Act as authorized by Section 4, Subsection (1Oj %!' the Public Welfare Act of 1941, as amended, being House Bill No. 611, Acts of the 47th Legislature, Regular Session, 1941, and being codified as Arti- cle 695~, Vernon's civil Statutes." Your request states that under the above Merit System salary increases are based on written satisfactory evaluation of work performed and are not automatic , and therefore in principle are similar to the Merit Salary Increases provisions in Article V, Section 1, Subsection L of House Bill 86, Acts of the 58th Legis- lature, 1963. However, the provisions of these two plans are not identical, particularly as to the length of time requlred between merit increases, the initial date that such merit can be recognized, and the number of employees eligible for such recognition. -831- Hon. John Ii. Winters, Page 2 (C- 172 ) Article V, Section 1 of House Bill 86 states that, except where otherwl .se speclfically.provided, expenditures for employees* salaries in classified positions shall be governed bye and be in conformity with the provisions of such Section. However, within the provisions of House Bill 86 relating to the Department, the following appears at page 111-186: “Salary adjustments and merit system in- creases shall be governed by agreements with the Federal Government provided, however, that such agreements do not exceed the provisions in this Act governing the operation’of the State Employees Classlflcation Plan.” You therefore ask our opinion concerning the following question: “DO the Statutes and the Appropriation Act permit a Salary Classification Plan under the Merit System Rule with a beginning step for each position not above Step 1 of the State Salary Classification Schedule and for Intermedlate steps to which employees may be advanced at stated intervals as may be agreed by the State Department of Public Welfare and the Federal Agencyso long as the maximum salary paid does not exceed the maximum for the group to which the employee Is assigned as provided in the State Classification Salary Schedule under the State Salary Classification Plan?” The use of the Merit System by the Department was first authorized in 1941 when the Le islature enacted Article 695c which provides at Section 4 (10 7 that the Department shall: “(10) Have authority to establish by rule and regulation a Merit System for persons em- ployed by the State Department of Public Welfare in the administration of this Act; and shall pro- vide by rule and regulation for the proper operation and maintenance of such Merit System on the basis of efficiency and fitness; and may provide for the continuance in effect of any and all actions here- tofore taken in pursuance of the purposes of this subsection. The State Department is empowered and authorized to adopt regulations that may be necessary -832- . - Hon. John H. Winters, page 3 (C472 ) to conform to the Federal Social Security Act approved March 14, 1935, as emended, and shall have the power and authority to provide for the maintenance of a Merit System in conjunction with any Merit System applicable to any other State agency or agencies operating under the said Social Security Act as amended. "The Social Security Board shall exercise no authority with respect to the selection, ten- ure of ,office, and compensation of any individual employed in accordance with such methods." After some twenty years of operation by the Department under the Merit System Rule, the Legislature a ain acknowledged such in the !Position Classification Act of'19 %1, ",codified as Article 6252-11, Vernon's Civil Statutes, which recites in Sec- tion 5 that: !I . . . "The preceding two paragraphs of this Section, however, shall not be construed as abrogating statutory authorizations for cer- tain State agencies to operate under employee merit systems as a condition for qualifying for Federal grants-in-aid; and all such merit systems as have been or may hereafter be agreed to by the respective State agencies and agencies of the U.S. Government shall be in full force and effect, subject only to the applicable laws of this State." In addition, it is also observed that while the Depart- ment is covered by the classification of employees, Its employees are not fully within the salary schedule accompanying such clas- sification. In nearly every instance maximum salaries are no high- er than an amount equal to Step 3 of the Salary Schedule, and. there- fore starting salaries usually fall below that prescribed by Step 1. The only counterbalance to these deficiencies is the Merit System which allows for the continued and regular recognition of meritorious service. A consideration of all of the foregoing factors leads us to the conclusion that the Legislature was well aware that the Department's operation is substantially affected by agreements with the Federal Government, and that it recognized the condition of a Merit System in order to qualify for such grants-in-aid. -833- - . Hon. John H. Winters, page 4 (C-172 ) Further, in viewing the Classification System broadly as a plan to place all State employees of a same class on an equal basis as far as possible , we are unable to perceive how the contin- uation of the agreements with the Federal Government will violate this principle with the fact in mind that the Department is already at a comparative disadvantage salary-wise. Therefore, in consideration of all of these factors, it is our opinion that the Department's agreement as set forth in the question presented is authorized and that a continuation of the Merit System is authorized. SUMMARY Agreements between the State Department of Public Welfare and the Federal Government, as regards the Merit System , are authorized so long as beginning salaries do not exceed Step 1 and maximum salaries do not exceed Step 7 of the Salary Classification Schedule. Very truly yours, WAGGONER CARR Attorney General pp:mkh Assistant APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Pat Bailey Paul Robertson Nicholas Irsfeld George Gray APPROVEDFOR THE ATTORNEY GENERAL BY: Stanton Stone -834-