Untitled Texas Attorney General Opinion ( 1986 )


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  •           THE     ATTCMRNEY           GENERAL
    OR' TEXAS
    Cctober 8, 1986
    Eonorable Lloyd Criss                       Opinion   NO.   JM-556
    Chairman
    Labor and Employment Relat:ions             Re:   Whether a state employee
    committee                                may be denied a merit increase
    Texas House of Representat:ives             because of absence for a work-
    P. 0. Box 2910                              related injury
    Austin. Texas   78769
    Dear Representative Criss:
    You inquire about the denial of a merit pay increase to an
    employee of the Texas DeIlartment of Corrections. The employee was
    hired in September, 1983 and, during the year that followed, was
    absent on an approved woI.uz's compensation claim for about two and
    one half months. In Septmber 1984, she received a one-year service
    pin and began receiving huardous duty pay, but was denied a merit pay
    increase because of her absence on the worker's compensation claim.
    You ask whether the department may refuse to consider an employee for
    a merit pay raise solely bmause the employee was absent for recupera-
    tion from a work-related yinjury for which the employee's worker's
    compensation claim was appmved.
    Article 6813b, V.T.C.:;.,provides, in part, that
    [8]11 salaries o:E all State officers and State
    employees. incl.uding the salaries paid any
    individual out of the General Revenue Fund, shall
    be in such sums or amounts as may be provided for
    by the Legislature in the biennial Appropriations
    Act.
    V.T.C.S. art. 6813b, §l. The Position Classification Act of 1961.
    article 6252-11, V.T.C.S., provides that the salaries of full-time
    employees, with certain exceptions, "shall also conform with the
    Position Classification Plan hereinafter described and with the salary
    rates and provisions of the applicable Appropriations Act. . . ."
    see Attorney General Opinion H-105 (1973).
    V.T.C.S. art. 6252-11, 82; .-
    Since the employee in question was hired in September, 1983, the
    General Appropriations Act for the 1983-85 biennium governs her com-
    pensation. Provisions re:Lating to the Position Classification Plan
    are set out in section 1 of article V of the 1983 General Appropria-
    tions Act. Acts 1983, 63th Leg., ch. 1095, art. V, 91, at 6171.
    Article V, section 1 state; in part:
    p. 2472
    Honorable Lloyd Criss - Pae,e2   (JM-556)
    a. SALARY RATES FOR CLASSIFIED POSITIONS. For
    each fiscal year beginning September 1, 1983,
    within the limitation of funds available for
    salaries of clarlsified positions, annual salary
    rates for class,ified positions shall be in
    accordance with the above Classification Salary
    Schedules.
    .   .   .   .
    d. MERIT SALKRY INCREASES. It is expressly
    provided that c.gency administrators may grant
    merit salarv inc'reases to classified emulovees
    _   I
    whose   job  perf,Drmance and   productivity is
    consistently abtnre that normally expected or
    required. Such merit increases shall be subject
    to the following restrictions. (Emphasis added).
    The restrictions enumerated under section 
    Id. pertain to
    the
    source of funds, the maximtmLmonthly expenditure rate for merit salary
    increases, merit increases; for line item positions, accounting and
    reporting, and the application of merit increases throughout the
    agency's classified salary g;rouping. Finally, the following provision
    states conditions for elig~.bilityfor merit increases:
    (7) For an eszloyee to be eligible for a merit
    salary increase, t:hefollowing additional criteria
    must be met:    (g) the employee must have been
    employed by the %gency for at least six months.
    (b) at least 6 m&ths must have elapsed since the
    employee's last promotion or merit-increase, and
    (c) agency criteria for granting merit salary
    increases must :include specific criteria and
    documentation to s;ubstantiatethe granting of more
    than a one stt!p merit increases.        (Emphasis
    added).
    Acts 1983, 68th Leg., ch. :.Cl95,
    art. V, §ld.(l), at 6196.
    The employee in question had been employed by the Department of
    Corrections for a calendar year before she was considered for a merit
    pay increase. Thus, even :.i!her two and one half months of absence on
    an approved compensation c1.ai.mwere not counted, she still had been
    "employed by the agency fcmrat least six months." Nevertheless, you
    express general concern ;ibout whether time spent off work for a
    worker's compensation claim must be considered in determining eligi-
    bility for consideration for:a merit pay raise.
    We do not believe that the quoted provision requires the
    employee's presence each working day for six months. Attorney General
    Opinion H-105 (1973) addressed an appropriations act provision which
    awarded pay increases to state employees with five or more years
    p. 2473
    Honorable Lloyd Criss - Pa:$e3   (JM-556)
    "total continuous service' as of a particular date. See Acts 1973,
    63rd Leg., ch. 659, art. 'J:,§la.(l), at 2191. Some state employees,
    although hired more thar. five years previously, had experienced
    interruptions in their five years' service by prolonged illness. The
    opinion pointed    out   the   distinction between    "service"  and
    "employment":
    Those who remai;Il%din its [the state's] employ
    but, for instancm>,were on vacation (certainly not
    'serving') would interrupt their service and would
    not 'continuous:.y serve' the State.     (Emphasis
    added).
    Thus, the phrase "employed by the state" means that the employment
    relationship exists, and rot that the employee serves the state each
    working day, without authorized absences. If the employee remains on
    the payroll, or if tbe employment relationship is otherwise
    demonstrated, he is still employed while absent on leave. Attorney
    General Opinion H-105 further decided, based on legislative intent,
    that the appropriations ac'cprovision required
    five years of se:?riceunbroken by any unauthorized
    or unreasonable absences. Holidays, days on sick
    leave, week-ends, emergency leaves and other
    approved leaves, with or without pay, do not break
    the continuity o:Eservice.
    Two opinions of thi!; office construing the nepotism statute,
    article 5996a. V.T.C.S.. also support our interpretation of the merit
    pay provision.    In Lettszr Advisory No. 151 (1978) this office
    construed the exception in article 5996a, V.T.C.S., for persons who
    had "been continuously employed" by a governmental body for two years
    before the election or appointment of an officer or board member
    related to them within 21 prohibited degree. The Letter Advisory
    quoted from Cox v. Brown, ,jOS.W.2d 763, (MO. App. 1932), in which the
    Missouri Court of Appeals ,statedthat
    [t]o be employetl in anything means not only the
    act of doing it, but also to be engaged to do it.
    or:to be under contract or orders to do it.
    Cox v. 
    Brown, 50 S.W.2d at 764
    . Accord, Rousseau v. Teledyne Movible
    Offshore. Inc., 
    619 F. Supp. 1513
    , 1517 (W. D. La. 1985); Bigger v.
    Unemolovm,ent Compensation Commission, 
    46 A.2d 137
    (Del. Super. Ct.
    1946), aff'd. 
    53 A.2d 761
    zlel. 1947); In re Cormicks Estate, 
    160 N.W. 989
    (Neb. 1916). ---
    See Rose v. Clutter, 
    271 S.W. 890
    , 891 (Tex. Comm'n
    App. 1925, judgmi . adopted) ("employed" has the same meaning as
    "hired"). The Let1:er Advi!loryconcluded that
    a school district employee who is between terms
    but has had his contract renewed for the
    p. 2474
    Honorable Lloyd Criss - Pagl!4     (JM-556)
    succeeding schoo!. year is employed within       the
    meaning of the nepotism statute.
    In Attorney General Opinion Hi-45 (1983) we dealt with the
    Nepotism Act proviso for persons "continuously employed" prior to the
    time their relatives became officers of the governmental body. We
    reaffirmed the conclusion of Letter Advisory No. 151 that an
    individual may be continuously in the employ of the school district
    even though not rendering services at all times throughout the year.
    We conclude that the employee would have been "employed by the
    agency for at least six months" under the merit pay provision of the
    1983 General Appropriations Act if she had been hired six months prior
    to the time of merit pay coneideration and had remained on the payroll
    or otherwise continued to o~:cupythe status of an employee during that
    time. The two and one half months' absence to recuperate from a
    compensable work-related inj,uryshould not be subtracted from the six
    months' employment, and she should not be refused consideration for
    merit pay because of that a',sence.
    The 1983 General Appr~,priationsAct provides that merit salary
    increases may be awarded to "classified employees whose job per-
    formance and productivity ia consistently above that normally expected
    or required." A merit pay increase is thus awarded on the basis of
    performance. See Attorney General Opinion H-106 (1973). It may be
    the case that=     employee has not actually worked for a sufficient
    length of time to determine whether the employee's performance exceeds
    expectations. All conditicns for the award of merit pay must be met
    in order for an employee to receive it.
    SUMMARY
    Under the merit pay provision of the 1983
    General Appropriations Act, an employee has been
    "employed by the agency for at least six months"
    if he was hired at least six months previously and
    has remained on the payroll or otherwise continued
    to occupy the status of an employee. If the
    individual is absent on an approved worker's com-
    pensation claim i!ora portion of the six months'
    employment, he has not for that reason failed to
    have been employed by the agency for six months.
    Attorney General of Texas
    JACK HIGHTOWKR
    First Assistant Attorney General
    p. 2475
    .
    Honorable Lloyd Criss - Page 5   (JM-556)
    MARY KELLER
    Executive Assistant Attorney General
    RICK GILPIN
    Chairman, Opinion Committee
    Prepared by Susan L. Garrison
    Assistant Attorney General
    p. 2476
    

Document Info

Docket Number: JM-556

Judges: Jim Mattox

Filed Date: 7/2/1986

Precedential Status: Precedential

Modified Date: 2/18/2017