Opinion No. (1993)

VARIOUS STATE PAYROLL MANAGERS HAVE INQUIRED OF THE OFFICE OF STATE FINANCE AND THE OFFICE OF PERSONNEL MANAGEMENT AS TO HOW THEIR AGENCIES SHOULD PROCESS THE PAYROLL FOR STATE ELECTED OFFICERS AND LEGISLATORS UNDER THE NEW SOONER CHOICE FLEXIBLE BENEFITS PROGRAM. AS YOU KNOW, FOR MANY YEARS THE STATE AS AN EMPLOYER HAS PROVIDED MEDICAL, DENTAL, LIFE AND DISABILITY PLAN COVERAGE AS FRINGE BENEFITS TO FULL TIME STATE EMPLOYEES, INCLUDING ALL STATE ELECTED OFFICERS, LEGISLATORS, AND JUDGES, AT NO COST TO THEM.

THIS YEAR THE SOONER CHOICE LEGISLATION INTRODUCED A "FLEXIBLE BENEFIT ALLOWANCE" FROM WHICH STATE EMPLOYEES WERE REQUIRED TO PURCHASE A MINIMUM CORE OF BASIC BENEFITS CONSISTING OF MEDICAL, DENTAL, LIFE AND DISABILITY PLAN OPTIONS. DEPENDING UPON THE PERSONAL SELECTIONS MADE BY EACH STATE EMPLOYEE, HE OR SHE MAY EXPERIENCE A NET SAVINGS RANGING FROM $2.02 TO $20.31 PER MONTH, BECAUSE THE COMBINED PACKAGE OF THE REQUIRED BENEFITS COST LESS THEN THE MONTHLY FLEXIBLE BENEFIT ALLOWANCE OF $187.19. UNDER THE SOONER CHOICE PROGRAM, EACH STATE EMPLOYEE RECEIVES THIS COST SAVINGS IN THE FORM OF CASH AS PART OF HIS OR HER REGULAR PAY CHECK.

CONCERN WAS RAISED BY THE VARIOUS PAYROLL MANAGERS AS TO THE APPROPRIATENESS OF THIS EXCESS AMOUNT BEING PAID TO ELECTED OFFICERS AND LEGISLATORS GIVEN THE LIMITATIONS AS TO CHANGING THEIR COMPENSATION IN THE CONSTITUTION OF OKLAHOMA, SPECIFICALLY ARTICLE VI, SECTION 6/ARTICLE VI, SECTION 34/ARTICLE XXIII, SECTION 10/ARTICLE V, SECTION 21.

I HAVE REVIEWED THESE CONSTITUTIONAL PROVISIONS AND OTHER RELEVANT OKLAHOMA STATUTES, INCLUDING THE OKLAHOMA STATE EMPLOYEES FLEXIBLE BENEFITS ACT, 74 O.S. 1361 (1992) ET. SEQ., AND THE RULES PROMULGATED BY THE OKLAHOMA STATE EMPLOYEES BENEFITS COUNCIL.

IT IS MY OPINION THAT THE MONTHLY DISBURSEMENT OF THE EXCESS OF THE FLEXIBLE BENEFIT ALLOWANCE OVER THE INDIVIDUAL'S COST OF HIS OR HER BENEFIT PACKAGE IS NOT AN INCREASE IN COMPENSATION FOR STATE ELECTED OFFICERS OR LEGISLATORS BECAUSE, UNTIL THIS FISCAL YEAR, THE STATE HAS SIMPLY GIVEN EACH EMPLOYEE A PACKAGE OF FUNGIBLE BENEFITS AND FINANCED THEM INTERNALLY WITHIN THE OPERATIONS OF STATE GOVERNMENT. WHERE AS, NOW EACH EMPLOYEE SPECIFICALLY SELECTS HIS OR HER BENEFITS AND PAYS FOR THEM USING THE FLEXIBLE BENEFIT ALLOWANCE. THEREFORE, SAID EXCESS AMOUNTS SHOULD BE PAID TO THEM AS ANY OTHER STATE EMPLOYEE.

IT SHOULD BE NOTED THAT, ARTICLE VII, SECTION 11 OF THE CONSTITUTION PROVIDES THAT THE COMPENSATION OF STATE JUSTICES AND JUDGES SHALL NOT BE DIMINISHED DURING THEIR TERM OF OFFICE. IT IS ALSO MY OPINION THAT THE EXCESS SUM OF THE FLEXIBLE BENEFIT ALLOWANCE OVER THE INDIVIDUAL'S COST OF THESE FRINGE BENEFITS MUST BE PAID TO ALL STATE JUSTICES AND JUDGES, SO AS NOT TO BE A REDUCTION IN THEIR COMPENSATION.

I WOULD FURTHER SUGGEST THAT THE APPROPRIATE LEGISLATIVE LEADERS AND THE BOARD ON LEGISLATIVE COMPENSATION BE ADVISED OF THIS SITUATION SO THAT THEY MAY EACH DETERMINE HOW THEY MAY WANT TO EXPRESS FUTURE COMPENSATION FOR EACH OF THESE GROUPS IN ORDER TO AVOID CONFUSION.

(JOHN CRITTENDEN)