Untitled Texas Attorney General Opinion ( 1961 )

EATE-OECNETT ,GENE OF XAS October 6, 1961 Honorable William J. Burke Opinion No. WW-1159 Executive Director State Board of Control Re: Construction of House Austin, Texas Bill 189, 57th Legisla- ture, and the classifica- tion plan in reference to certain employees of the San Jaclnto State Park who were heretofore Dear Mr. Burke: paid on a dally basis. You have requested this office for an opinion on the questions of: II . . . (1) Should-employees who have been on the payroll as regular employees of the San Jacinto Park Commission and paid on a faily rate from the appropriation item titled Wages and Extra Help' (H.B. 4 who now under the provisions of House Bill 1c4 9 and the classification plan are classified as 'Laborers"with job specification 9003 be brought under the provisions of the classi- fication plan and the salary schedule as regular employees on the payroll as of August 31, 1961 and thereby entitled to com- putation of annual salary bates In keeping with the provisions of House Bill 189, Sec- tion 2, paragraph 3? "(2) If your answer to question one (1) above is in the affirmative, should an employee furloughed for two weeks due to a lack of funds in the 'Wages' account (H.B. 4), a situation beyond the control of the San Jacinto Park Commission and the employee, be returned to and continued on the park payroll as of September 1, 1961 as a regular employee and his salary under the classifica- tion plan established in keeping with the language and intent of paragraph three (31, Section two (2) of H.B. 189, 57th Legisla- ture, Regular Session?" Honorable Wlliam J. Burke, page 2 @W-1159) The nature of the questions posed necessitates the setting out the factual background. Four of the employees of the San Jacinto State Park, under the pro- visions of Senate Bill 1, Actsof :he 57th Legislature, 1st Called Session, and House Bill 189, Acts of the 57th Legislature, Regular Session, Chapter 123, page 238, the Position Classification Act of 1961, have been classified as "Laborers" with job specification of 9003. These four employees, while compensated previously on a daily rate basis rather than an annual salary basis, have been regularly employed by the San Jacinto Park for periods of time ranging from two (2) to seven (7) years. The annual earnings for these four employees for the year ending August 31, 1961, even though paid on a daily rate basis, and their contributi.onsto the Employees Retirement Fund are set forth as follows:: "Employee Retirement A For the biennum commencing with the 1st day of September, 1951, and ending on the 31st day of August, 1961, these four employees have been compensated from funds appropriated to the San Jacinto State Park pursuant to ,theprovisions of House Bill 4, Acts of the 56th Legislature, 3rd Called Session, Chapter 23, page 562, the General Appropriation Bill, under the alloca- tion of "Wages and Extra Help." The Comptroller of Public Accounts has raised the question of whether or not these four employees fall within the provisions of Section 2 of House Bill 189 which provide that: II . . . Specifically exempted from the Position Classification Plan herein- after described are . . . hourly employees, part-t$me and temporary employees. . . . , and thereby are now considered as new employees and thus subject to the provisions of Section 13 of Article III of SenatesBill 1 which provide that: "B. Hiring Policies. (1) New employees will be started at the minimum salary of . Honorable William J, Burke, page 3 (WW-1159) the range to which the position is assigned;'a e Q While the four employees involved in the instant case have heretofore been employed by the San Jacinto State Park on a daily rate basis3 House Bill 4 contained no provision making this method of compen- sation necessary. Such employees could have been employed by the San Jacinto State Park on an annual salary basis rather than a daily rate basis, and the only limitation placed upon the San Jacinto State Park was the availability of appropriated funds in the "wages and Extra Help" fund from which these four employees were paid. As these four employees are not hourly employees, and in turn could not be considered part- time or temporary employees in view of their past employ- ment with the San Jacinto State Park, but in actuality were regular, full-time employees of the San Jacinto State Park,~such employees would not fall within the exemption from the Position Classification Plan found in Section 2 ~of House Bill $39. Such being the case and in view of the pro- visions of Dararrraohthree (3) of Section 2 of House Bill 189 which &?ovide that;-' "It is further provided, however, that emn se presently emDloved & t& St%e ih%? 2 Paid less throumh aPDlication of this Act than the salary hg received & accordance with the provisions -- of House Bfll No. mActs rthe Fifty-sixth Legislature, Third Called Session, 1959, or the minimum of the appropriate salary range specified in the General Appropriations Act effective September 1, 1961, which- ever is the higher, so long as said employee remains in such classified position under the Positiot Classifica- tion Plan."~ (Emphasis added) We are of the-_. opinSonL"._ that _the four employees in the instant case WOUCL oeentitleci to compensation, in their classification as "Laborers" with iob speoifi- cation of 9003, in an annual amount of not less t13n the total compensation they had received on a daily rate basis during,the period commencing Sep,tember1, 1960 and ending August 319 1961. . Honorable William J. Burke, page 4 (WW-1159) Your first question being answered in the affirmative, this then raises the question of whether or not one of these employees who had been furloughed for a period of two weeks at the end of the biennum due to a,,lackof available funds in the "Wages and Extra Help account, will be compensated pursuant to the pro- visions of Section 2 of House Bill 189 or whether the following provisions of Section B of Article III of Senate Bill 1 are applicable: "(3) Reinstated Employees. An employee who leaves state employment due to illness or some other circum- stance and returns to his same position in state employment at a later date, may be reinstated to his former position at the salary rate he had when he left state employment, provided it shall not exceed the maximum rate of the pre- scribed salary group. If tiiisformer rate exceeds the maximum of the range in the prescribed salary group then the position shall be paid at not more than the maximum." We are of the opinion that an employee who had been temporarily furloughed under these circum- stances set forth herein has not left State employment wi?Wi.nthe sense contemplated by Section B(3) of Article III of Senate Bill 1, and therefore could be returned to the payroll of the San Jacinto State Park on September 1, 1961, and compensated pursuant to the provisions of paragraph three (3) of Section 2 of House Bill 189, and in an amount of not less than the rate of compensation he had received during the period commencing September 1, 1960 and ending August 31, 1961. SUMMARY The four employees of the San Jacinto State Park in the instant case are entitled to compensation in an amount of not less than the rate of compensation they had received on a daily rate basis, during the period commencing September 1, 1960 and ending August 31, 1961. The employee in the instant case who had been temporarily furloughed HonorableWilliam J. Burke, page 5 (WW-1159) has not left State employment within the sense contemplated by Section B(3) of Article III of Senate Bill 1 and could be returned to the pay- roll of the San Jacinto State Park on September 1, 1961, and compen- sated pursuant to the provisions of paragraph three (3) of Section 2 of House Bill 189. Yours very truly, WILL WILSON Attorney General of Texas PB:lgh By: Assistant APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Bob Eric Shannon Jack Goodman Colman Gay III Harry Hewell REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.