Opinion
June 2, 2004
9 CIVIL SERVICE COMMISSION
90-A POLITICAL SUBDIVISIONS — Officers, Agents Employees
Change in the minimum hiring rate, resulting in 10% increase in pay for classified employees of the registrar of voter's office in East Baton Rouge Parish does not constitute action prohibited by the constitution, nor is it significant on the total budget of the city/parish.
Elaine Lamb Registrar of Voters Parish of East Baton Rouge Governmental Building, Room 201 222 St. Louis Street Baton Rouge, LA 70802-5860
Dear Ms. Lamb:
Your request for an opinion states that the Department of Elections and Registration extended a 10% pay increase to the classified registrar of voters employees in October of 2003, which has been objected to by the East Baton Rouge Parish governing authority as a prohibited, unfunded mandate. Your letter further states that the pay increase would amount to a $12,500 total increase for the parish, and you ask the following questions:
1. Does Attorney General Opinion No. 02-0173 apply to the instant situation?
2. If so, does the instant pay increase amount to a significant impact on the parish's budget?
3. If not, does the accumulation of the pay increase from the job study in 2002 and the recent 10 percent increase create a significant impact on the parish budget?
In Attorney General Opinion No. 02-0173, our office was asked to give an opinion to the parish attorney's office for the City of Baton Rouge as to the constitutionality of a state department action mandating an increase in expenditures by a local governing authority. We opined that the action of State Civil Service, suggesting a classification change for employees in the registrars of voters offices, did not constitute a state executive order, rule or regulation for purposes of the constitutional prohibition of increasing the financial burden of political subdivisions in Article VI, Section 14, even though the implementation of this action by the Department of Elections resulted in a fiscal impact on the city/parish government. Thus, we reviewed the fiscal impact and concluded that pay raises in the approximate amount of $7,500 caused a 0.00152% effect on an estimated $492 million budget, and was not a significant fiscal impact on the city/parish.
When researching this matter, we learned that the basis for this increase in pay was a change in the minimum hiring rate by the Department of Elections due to the economic and employment conditions in the Registrars of Voters' offices statewide. Pursuant to Civil Service Rule 6.5(b) [ See,http://www.dscs.state.la.us]:
When economic or employment conditions cause substantial recruitment or retention difficulties, the Director may authorize the appointment of qualified applicants at a special entrance rate or may authorize the use of a special retention rate within the range, or within the range plus base supplement authorized for the position, for the job in a limited geographical area or for positions in a job where employment conditions are unusual.
1. The department or departments to which the special rate is made applicable having employees in the same job in the affected area or locale where the special rate will be used, shall increase the pay rate of all such employees to the special rate. All new hires shall be paid at the special entrance rate or special retention rate. An appointing authority may adjust the salaries of employees working in the positions to which the special entrance rate applies to any salary up to but not to exceed the amount of the percent difference between the special rate and the current hiring rate.
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3. Special entrance rates and special retention rates must be approved by the commission at its next scheduled meeting after action was taken by the Director.
As per the September 12, 2003 letter by the Director of the Department of State Civil Service, the State Civil Service Commission on August 6, 2003 approved the flexible maximum hire rates proposed by the Department of State, effective September 9, 2003. A copy of the letter is attached for your information and review.
Thus, the Registrars of Voters' offices in this state were required to increase the pay rate of all presently employed personnel to this new special rate. And as you are aware, the state pays one-half the salary and the parish governing authority pays one-half the salary of the registrars' permanent employees, pursuant to LSA-R.S. 18:59.
As noted in Opinion No. 02-0173, we find that the type of action taken by the Department of Elections under the state civil service rules does not constitute a state executive order, rule or regulation for purposes of Art. VI, Sec. 16, where "no law or state executive order, rule or regulation requiring increased expenditures for any purpose shall become effective within a political subdivision until approved by ordinance resolution or until the legislature appropriates funds for the purpose or until a law provides for a local source of revenue ". However, should the action be viewed as such, then the question becomes whether the action has a significant fiscal impact on the parish governing authority, as this constitutional provision exempts "a law having insignificant fiscal impact on the affected political subdivision". LSA-Const. Art. VI, Sec. 14 (1974).
According to your letter, a 10 percent pay increase to the classified employees in your office would amount to approximately $12,500 for the parish's portion. Our research shows that the 2003 city/parish budget was approximately $529 million from all sources. By our calculations, an impact of $12,500 of $529 million is 0.00236%. And such impact would even be less if based on the 2004 budget of approximately $549 million [0.00228%]. These figures have a little more financial impact than those figures reviewed in earlier opinions: (1) Atty.Gen.Op. No. 02-0173, $7,500 of $492 million = 0.00152%; (2) Atty.Gen.Op. No. 00-268, $3,200 of $4,442,000 = 0.00072%. However, the impact appears insignificant in this matter, just as it did in our earlier opinions.
Finally, you ask whether the accumulation of the pay increase from the job study in 2002 [discussed in Atty.Gen.Op. No. 02-0173] and the recent 10 percent increase create a significant impact on the parish budget. At the time of the 2002 pay raise that resulted from the job study, the raise only affected eight workers in your office and the amount was approximately $7,500. Calculating that sum with the present 10 percent increase for a total expenditure of approximately $20,000, such figure would impact the $529 million 2003 budget at 0.00378% and the $549 million 2004 budget at 0.00364%. Again, we are of the opinion that these estimated impacts on the total budget of the city/parish appear insignificant in this matter.
Trusting that this opinion addresses your questions, we remain
Yours very truly,
CHARLES C. FOTI, JR
ATTORNEY GENERAL
_________________________________
ANGIE ROGERS LAPLACE
Assistant Attorney General
CCF, JR/ARL;mjb
September 12, 2003
Repetitive Leter (See Attached List)
Dear Human Resource Director:
The State Civil Service Commission, at its meeting on August 6, 2003, approved the following flexible maximum hire rates.
FLEXIBLE MAXIMUM HIRE RATE FOR THE ADMINISTRATIVE PAY SCHEDULE (AS) STATEWIDE UP TO THE 1ST QUARTILE OF THE RANGE EFFECTIVE SEPTEMBER 9, 2003.
FLEXIBLE MAXIMUM HIRE RATE FOR THE SOCIAL SERVICES PAY SCHEDULE (SS) STATEWIDE UP TO THE 1ST QUARTILE OF THE RANGE EFFECTIVE SEPTEMBER 9, 2003.
FLEXIBLE MAXIMUM HIRE RATE FOR THE MEDICAL PAY SCHEDULE (MS) STATEWIDE UP TO THE RANGE MAXIMUM EFFECTIVE SEPTEMBER 9, 2003.
Please remember that SER information must be input into ISIS-HR in the Organizational Management/Position Attributes area.
If you have any questions, please call Julie Ryan in the Compensation Division at (225) 342-8083.
Sincerely,
_____________ Allen H. Reynolds Director
CO:LLL:ddl
OPINION NUMBER 02-0173
October 9, 2002
9 CIVIL SERVICE COMMISSION 90-A POLITICAL SUBDIVISION La. Constitution Act VI, § 14 La. Constitution Act X, § 10
Action of Department of Elections under its "agency delegated classification authority" does not constitute a rule or regulation for purposes of Constitution prohibition on State increasing financial burden of political subdivisions even if such is considered a rule, $7,500 is not a significant fiscal impact on an entity with a $492 million budget. City Parish is not appropriate governing authority for state civil service employees.
Mr. Michael E. Ponder Office of the Parish Attorney City of Baton Rouge Parish of East Baton Rouge 222 St. Louis Street P. O. Box 1471 Baton Rouge, LA 70821
Dear Mr. Ponder:
You requested the opinion of this office concerning the constitutionality of a state department action mandating an increase in expenditures by a local governing authority.
You advised that House Resolution 110 of the 2001 Regular Session of the Louisiana Legislature requested that the Department of State Civil Service ("State Civil Service") conduct a job study of registrars of voters' employees and report the results to the House Committee on House and Governmental Affairs prior to the 2002 Regular Session. You further advised that State Civil Service issued a regulation implementing raises for registrars of voters' employees effective March 18, 2002 thereby imposing an unfunded mandate of salary increases for registrar of voters employees. Those raises were not included in the 2002 budget for the City of Baton Rouge/Parish of East Baton Rouge (the "City/Parish") nor did the City/Parish governing authority enact an ordinance or adopt a resolution relative to same. It is our further understanding that the legislature did not appropriate additional funds to pay the cost of the raises.
Your first question is whether the action of State Civil Service violates La. Const. Art. VI, Sec. 14, which provides as follows:
(A) No law or state executive order, rule, or regulation requiring increased expenditures for any purpose shall become effective within a political subdivision until approved by ordinance enacted, or resolution adopted, by the governing authority of the affected political subdivision or until, and only as long as, the legislature appropriates funds for the purpose to the affected political subdivision and only to the extent and amount that such funds are provided, or until a law provides for a local source of revenue within the political subdivision for the purpose and the affected political subdivision is authorized by ordinance or resolution to levy and collect such revenue and only to the extent and amount of such revenue. This Section shall not apply to a school board.
(B) This Section shall not apply to:
(1) A law requested by the governing authority of the affected political subdivision.
(2) A law defining a new crime or amending an existing crime.
(3) A law enacted and effective prior to the adoption of the amendment of this Section by the electors of the state in 1991.
(4) A law enacted, or state executive order, rule, or regulation promulgated, to comply with a federal mandate.
(5) A law providing for civil service, minimum wages, hours, working conditions, and pension and retirement benefits, or vacation or sick leave benefits for firemen and municipal policemen.
(6) Any instrument adopted or enacted by two-thirds of the elected members of each house of the legislature and any rule or regulation adopted to implement such instrument or adopted pursuant thereto.
(7) A law having insignificant fiscal impact on the affected political subdivision. (Emphasis added)
As to the type of action actually taken by State Civil Service, we refer you to "A Study of State Civil Service in Response to HOUSE RESOLUTION NO. 110 of 2001" (the "Study") which indicates that State Civil Service held a meeting with representatives of the Department of Elections, the Secretary of State's office and various staff and registrars throughout the State. The consensus of the meeting was that pay levels for most employees were inadequate to recruit and retain employees. State Civil Service suggested that the most efficient and rapid solution was to use "agency delegated classification authority" vested in the Department of Elections to move the employees from the classification of Voter Registration Specialist to higher paid existing generic clerical titles. The existing generic clerical job titles were representative of the job duties and responsibilities of the Voter Registration Specialist positions. After the employees moved from the Voter Registration Specialist classification to the generic clerical classification, the classification of Voter Registration Specialist would then be abolished. Pre-approval from State Civil Service was not necessary for these changes to occur. It does not appear from the information that has been supplied to this office that State Civil Service adopted any rule or regulation with regard to these positions.
We would suggest that the action of State Civil Service does not constitute a state executive order, rule or regulation for purposes of La. Const. Art. X, Sec. 10 as it does not appear that State Civil Service imposed a mandate that the classifications be changed. Nor was there a rule or regulation adopted by the Department of Elections. The action was taken by the Department of Elections as part of their "agency delegated classification authority". Thus it does not appear that there was a violation of La. Const. Art. VI, Sec. 16. See discussion in Polk v. Edwards, 626 So.2d 1128 (La. 1993).
However, assuming that the above described actions do constitute a "rule or regulation" for purposes of Art. VI, Sec. 16, exceptions (B)(1) through (6) to the constitutional provision are not applicable in this situation. We specifically concur with your conclusion that the exception contained in (B)(5) only applies to firemen and municipal policemen.
The question then becomes: does the regulation have a significant fiscal impact on the City/Parish?
According to the Study, the total cost to the State to implement the change on a statewide basis was $59,261.02. The State's share is 50%. Local governments are responsible for their proportionate share of the remaining 50% or $59,261.02. From discussions with House of Representative employees, it appears that 60 registrar employees were affected on a statewide basis, of which 8 were employed by the East Baton Rouge Parish Registrar of Voters Office. The estimated cost to the City/Parish for the non-State portion of the raises for the eight employees was estimated not to exceed $7,500. The 2002 City/Parish budget from all sources is $492,018,390.00.
You advised that the 2002 City/Parish budget has been reduced to 95% of the 2001 budget due to a decline in revenues. You indicated that payment of the raise increases would force the City/Parish to use non-recurring revenue for a recurring purpose and questioned whether such a practice constitutes a significant fiscal impact. As stated earlier, the City/Parish budget for 2002 is approximately $492 million from all sources. By our calculations, an impact of $7,500 would be 0.00152%. Even looking only at the general fund portion of the City/Parish budget (approximately $208 million), the impact of $7,500 is 0.00361%. It is the opinion of this office that raises in the approximate amount of $7,500 which causes a 0.00152% effect on an estimated $492 million budget is not a significant fiscal impact on the City/Parish. See Op.Atty.Gen. No. 00-268.
Your next question is whether the City/Parish is the "appropriate governing authority" to approve the salary increase pursuant to La. Const. Art. X, Sec. 10(C).
La. Const. Art. X, Sec. 10(A) and (C) provide in pertinent part as follows:
"(A) Rules (1) Powers. Each commission is vested with broad and general rulemaking and subpoena powers for the administration and regulation of the classified service, including the power . . . to adopt a uniform pay and classification plan . . . and generally to accomplish the objectives and purposes of the merit system of civil service
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(C) Wages and Hours. Any rule or determination affecting wages or hours shall have the effect of law and become effective only after approval by the governor or the appropriate governing authority." (Emphasis added)
In Thoreson v. State Department of Civil Service , 433 So.2d 184 (La.App. 1st Cir. 1983), the Court held that State Civil Service was given a Constitutional trust to establish and implement a uniform classification and pay plan as a non-political body. See also, Gaspard v. Department of State Civil Service , 93-0311 (La.App. 1st Cir. 3/11/94), 634 So.2d 14; Strickland v. State , 525 So.2d 740 (La.App. 1st Cir. 1988). Registrars of voters and their employees are not employees of local police juries or other local government units. In re Bankston , 306 So.2d 863 (La.App. 1st Cir. 1974). They are considered to be State employees. City of New Orleans v. State , 426 So.2d 1318 (La. 1983); Op.Atty.Gen. Nos. 87-20, 88-118, 85-558, 85-355; R.S. 18:62. Accordingly, State Civil Service has the exclusive authority, subject to the approval of the governor, to make rules or determinations affecting wages or hours of the employees of the registrars of voters who are in the State classified service.
In this instance, there is no "appropriate governing authority" to approve rules or determinations. With regards to the State system, the Governor must approve rules or determinations. The City/Parish would be the appropriate governing authority under La. Const. Art. X, Sec. 10(C) to approve rules or determinations affecting wages or hours for the Baton Rouge civil service system. It is the opinion of this office that "appropriate governing authority" refers to non-State civil service systems. See Saulter v. Sewerage Water Board , 593 So.2d 767 (La.App. 4th Cir. 1992); Babin v. City of New Orleans , 83-2499 (La.App. 4th Cir. 5/26/94), 637 So.2d 1309.
Trusting this adequately responds to your request, we remain
Yours very truly,
RICHARD P. IEYOUB
Attorney General
BY: ________________________________
MARTHA S. HESS Assistant Attorney General
RPI/MSH