Opinion
RELEASED AUGUST 12, 1993
3 — APPROPRIATIONS 8-A-4 — CLAIMS AGAINST THE STATE — Liability of 9 — CIVIL SERVICE COMMISSION 15-A — CONSTITUTIONAL LAW 61 — LAWS — General 62-B — LEGISLATURE — Acts bills 109 — STATE — Employees departments CONST 14.15(I), CONST 10.10(A)(1), CONST 10.10(A)(4), CC 9, R.S. 39:73
The decision to grant merit increases is that of the individual appointing authorities, in accordance with State Civil Service rules and regulations. Rules adopted by Civil Service relating to merit increases and layoff avoidance procedures are reasonably related to the constitutional powers and authority granted the Commission. The Commission's grant of rulemaking power precludes even the legislature from enacting a statute which would nullify a rule of the Commission.
The Honorable Jay Dardenne Louisiana Senate P.O. Box 94183 Baton Rouge, Louisiana 70804
The Honorable Elias "Bo" Ackal, Jr. Louisiana House of Representatives P.O. Box 13408 New Iberia, Louisiana 70562-3408
Gentlemen:
You have each requested an opinion of the Attorney General regarding the funding of merit pay raises for state classified employees for the 1993-94 fiscal year. Since the issues to be resolved are common to both requests, we are issuing a joint opinion thereon.
Act 14 of the 1993 Regular Session of the Louisiana Legislature, the general appropriations bill (Bill), reflects a 5.33% state general fund reduction for "attrition" for most state departments and agencies. The 5.33% is comprised of (1) a 3.5% reduction effected prior to the bill leaving the State Budget Office, (2) a .33% reduction (i.e., $2,400,000) pursuant to Section 6(B) of the Bill and (3) a 1.5% reduction pursuant to Section 7(C).
During the course of the debate on the Bill, the legislature considered line item funding for merit pay increases for fiscal year 1993-94. However, the Bill, as finally passed, did not reflect funding for said increases. You state that, while merit increases may not have been contemplated by the legislature, the State Civil Service Commission (Commission) is taking the position that the payment of merit increases is governed, exclusively, by its rules and regulations. You ask whether the constitutional powers granted the Commission include the exclusive authority to regulate the payment, vel non, of merit increases.
The purposes behind our Civil Service System have been elaborated upon many times by the courts of this state. The Louisiana Supreme Court commented in New Orleans, Etc. v. Civ. Service, Etc., 422 So.2d 402 (La. 1982) as follows:
"The fundamental purpose of civil service laws and rules is to establish a merit system for selecting non-policy forming public employees on the basis of merit and providing that they can be discharged only for insubordination, incompetency, or improper conduct, and not for religious or political reasons . . . . Civil service is designed to abrogate the "spoils system" under which public employees are not selected for employment and promotion on the basis of merit or qualifications for the position but as rewards for faithful political activity and service, so that the job holders and their families become economic slaves of a particular political organization and have to vote and work for the candidates of their faction regardless of the character or qualifications of the candidates . . . . The routine operation of a civil service system by merit selection, compensation regulation, and tenure protection serves to promote efficiency by abolishing useless and unnecessary jobs, maximizing the resources invested in employees by long service, and determining salary and length of service on the basis of benefits rendered to the people rather than to the victorious party . . . .
Because of the peculiar history of civil service in Louisiana, the inclusion of detailed provisions on civil service in the constitution contrary to the principles of a brief charter has been deemed necessary by legal scholars . . . . A self-operative merit system established in the constitution so that it can be repealed or amended only by a vote of the people has been deemed essential to the protection of civil service against repeal or weakening amendments . . . . "
Therefore, it is against this historical backdrop, and with these fundamental purposes in mind that we must consider the issues presented.
The Civil Service System was initially established pursuant to Article XIV, Section 15(I) of the Louisiana Constitution of 1921, which granted commissions the "authority and power" to adopt rules, etc. With the ratification of the 1974 Constitution, Article X, Section 10(A)(1) amplified the commissions' powers:
" § 10. (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 rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; to adopt a uniform pay and classification plan; to require an appointing authority to institute an employee training and safety program; and generally to accomplish the objectives and purposes of the merit system of civil service as herein established. It may make recommendations with respect to employee training and safety." (Emphasis added.)
Pursuant to its constitutional directive, the Commission adopted a pay plan which is contained in Chapter 6 of its rules and regulations. Section 6.14(a) and (b) provide with respect to merit increases:
"(a) When a new employee has been continuously employed, without a break in service of one or more working days for a period of six months, he becomes eligible for and may be granted a merit increase provided that the appointing authority has determined his performance merits such an award.
(b) At the end of each subsequent 12 month period of such continuous employment, he may be granted an additional merit increase if the appointing authority has determined that his performance merits such an award. This date of eligibility shall be known as an anniversary date and shall not change through such continuous employment within the classified service."
An administrative agency is vested with the authority to interpret its own rules and that interpretation becomes part of the rule. Department of Health, Etc. v. Perry, 423 So.2d 1266 (La.App. 1st Cir. 1982), rehearing denied; McNeely v. Depart. of Health and Human Resources, 413 So.2d 594 (La.App. 1st Cir. 1982), writ denied.
The Commission has historically interpreted its rules regarding merit increases to mean that state classified employees are entitled to receive an annual merit increase unless the employee's performance is deemed unsatisfactory by the appointing authority, or unless it is necessary to withhold the increase in order to avoid, reduce, or minimize a layoff, or to avoid a substantial impairment to the ability to provide essential services.
Chapter 17 of the Commission's rules addresses layoff avoidance measures. Section 17.5(a) recognizes the withholding of merit increases as a layoff avoidance measure. Section 17.10.1, as amended by the adoption of an emergency rule by the Commission on July 20, 1993, provides:
"When an appointing authority determines that it is necessary to withhold merit increases after June 30, 1989, of all employees under his jurisdiction in order to avoid a layoff, reduce or minimize a layoff, or to avoid substantial impairment to the ability of the appointing authority to provide essential services, he may do so subject to the following provisions:
(a) Any withholding of merit increases must receive approval of the Director, no later than fourteen calendar days after the effective date, based on written certification from the appointing authority that his department does not have sufficient funds to give such increases to all employees. This justification shall include the reasons for the withholding of merit increases, the names and jobs of those employees to be excluded, if any, and reasons for their exclusions, the proposed effective dates and periods of time involved, and the organizational unit(s) and geographic area(s) affected. If the request or any part thereof is not approved by the Director, the employees included in the plan or portion of the plan not approved must be paid their merit increase for that period of time between the proposed effective date and date of the Director's determination. In all cases of disapproval by the Director, his decision shall be subject to the Commission's ratification, at its next regularly scheduled meeting.
(b) Authority for such withholding of merit increases shall not exceed one twelve consecutive month period, subject to Rule 17.6.
(c) Employees whose merit increases are withheld according to the provisions of this Rule shall retain their eligibility for such increases."
Rules adopted by the Commission pursuant to Article X, Section 10(A)(1) have the effect of law. Article X, Section 10(A)(4). Moreover, the convention debates surrounding the adoption of Section 10(A)(1) reflect an intent that the provision should be construed liberally in favor of fulfilling the goals of civil service. New Orleans Firefighters Assoc. v. City of New Orleans, 590 So.2d 1172 (La. 1991); Sanders v. Dept. of Health and Human Resources, 388 So.2d 768 (La. 1980).
Having the force and effect of law, the rules of the Commission must be given effect by the courts so long as they are reasonable and do not violate basic constitutional rights. Legros v. Dept. of Public Safety, 364 So.2d 162 (La.App. 1st Cir. 1978), writ refused.
Further, it is axiomatic that the Commission's grant of rulemaking power precludes even the legislature from enacting a statute which would nullify a rule of the Commission. Smith v. Dept. of Health and Human Resources, 416 So.2d 94 (La. 1982); Frazier v. Department of State Civil Service, 449 So.2d 95 (La.App. 1st Cir. 1984).
In Appeal of Brisset, 436 So.2d 654 (La.App. 1st Cir. 1983), writ denied, the court opined:
"In Thoreson, supra, we concluded that the commission has the exclusive power to establish a uniform pay and classification plan for all certified employees. A fortiori, we now hold that the power vested in the commission under Art. X, Sec. 10(A) of the constitution is exclusive in nature with respect to all aspects to the classified service listed therein."
In Civil Service Commission of New Orleans v. Guste, 428 So.2d 457 (La. 1983), the Supreme Court noted:
"Under the 1974 Louisiana Constitution, the Civil Service Commissions are autonomous bodies with circumscribed duties. The merit system they administer is self-operative and established in the constitution. Their constitutionally delineated powers and duties are above change or modification by the Legislature; and such powers and duties are exclusive."
As previously stated, the rules of the Commission have the force and effect of laws so long as they are reasonable and not violative of basic constitutional rights.
In Bazley v. Tortorich, 397 So.2d 475 (La. 1981), the Louisiana Supreme Court recognized a list of rights which have been found to be fundamental. This listing includes freedom of expression and association, right to vote and participate in the electoral process, right to interstate travel, right to fairness in the criminal process, and right to fairness in procedures concerning governmental deprivations of life, liberty and property.
We have reviewed the rules in question and have determined that they do not violate the constitutional rights of the class of individuals effected thereby. We focus now on the reasonableness of the rules.
The granting or withholding of merit increases are clearly related to the Commission's express powers to regulate compensation and disbursements to employees and to adopt a uniform pay and classification plan. Likewise, the rule requiring appointing authorities to submit layoff avoidance plans to the Commission to justify withholding the merit increase is rationally related to guaranteeing the independence, security and welfare of public servants.
A review of the requirements set forth in the rules at issue leads us to the conclusion that they are reasonably related to the constitutional powers and authority granted the Commission and the underlying goals of the Civil Service System. We further find that the authority to regulate the payment, vel non, of merit increases and the formulation of layoff avoidance plans is exclusive to the Commission.
With regard to the issue of the legislative intent in the Bill that merit increases be withheld, we have reviewed the applicable provisions of the Bill relating to reduction/attrition [Sections 6(B) and 7(C)], and can find no language to suggest that the attrition must be accomplished through the withholding of merit increases. To the contrary, Section 16(B) reflects the "Restoration of merit pay increases". When a law is free and unambiguous and its application does not lead to absurd consequences, the law must be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art 9.
Assuming arguendo, the Bill provided for the withholding of merit increases, said provision would constitute an infringement upon the exclusive power granted to the Commission by Article X, Section 10(A)(1). As such, it would be subject to constitutional challenge. Appeal of Brisset, cited supra.
Accordingly, it is our opinion that the decision to grant merit increases for fiscal year 1993-94 lies with the various appointing authorities of each department, in accordance with Civil Service rules and regulations.
Further, we are aware of no statutory or constitutional provisions which would prohibit departments or other budget units from modifying their budgets, and the programs contained therein, in order to fund merit increases.
In implementing merit increases, appointing authorities may have several options for the funding thereof. In some cases, an agency may have means of financing other than through the general fund. We also draw your attention to Section 4 of the Bill which authorizes the transfer of unencumbered funds accruing to one appropriation to any other appropriation within the same department or schedule. In addition, LSA-R.S. 39:73 authorizes the transfer of funds between programs within a budget unit.
Care should be taken in effecting these transfers, so that the appropriate documentation is submitted, and the necessary approval is obtained.
Your final inquiry questions the potential civil liability of the state in the event some appointing authorities are not able to grant merit increases. While the potential for litigation is always present, we are of the opinion that the Civil Service rules discussed hereinabove appear to afford all state classified employees due process and equal protection under the laws. Assuming the director does not administer these rules in an arbitrary or capricious manner, the risk of liability to the state appears minimal. Casse v. Dept. of Health and Hospitals, et al., 597 So.2d 547 (La.App. 1st Cir. 1992).
Trusting this adequately responds to your questions, I am
Yours very truly,
RICHARD P. IEYOUB Attorney General
BY: ROBERT E. HARROUN, III Assistant Attorney General
RPI/ROB3/bb 0133R
cc: Honorable Mary L. Landrieu Commissioner Raymond Laborde Herb Sumrall