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Official Opinion 2006-3

Official Opinion 2006-3

October 16, 2006
To: 

Interim Commissioner, Georgia Merit System

Re: 

Absent explicit statutory provisions to the contrary, the Merit System Act does not generally authorize the State Personnel Board or the commissioner to promulgate rules or adopt policies that would be binding on agencies or departments that are not covered, nor can such rules or policies be promulgated pursuant to a gubernatorial executive order.

This opinion answers questions raised by your predecessor, who requested advice on the following issues:

1. Whether the State Personnel Board or the commissioner of the state merit system, or both, have the authority to promulgate policies for personnel administration that would be binding on all state agencies or departments regardless of whether the agency or department is otherwise “covered” under the merit system as outlined under O.C.G.A. § 45-20-2(8).

2. Whether, in lieu of statutory change, the authority to promulgate policies for all state agencies may be conferred by a gubernatorial executive order.

For the reasons that follow, it is my opinion that both questions must be answered in the negative.

Background

In 1943, the Georgia General Assembly legislatively established a merit system of personnel administration to cover certain departments of state government, including the departments of Labor, Public Welfare, and Health. At that time, the federal government required state public assistance programs receiving federal funding to adopt federal personnel standards for employees, including selection based on merit and protection from political removals.1 Consequently, under the 1943 law, the “covered” departments were subject to oversight by a state Merit System Council.

In 1945, Georgia voters ratified a constitutional provision for a State Personnel Board. The provision provided, in relevant part, that “[a] non-salaried State Personnel Board . . . shall administer a State Merit System under which State personnel shall be selected on the basis of merit, fitness, and efficiency according to law.” GA. CONST. of 1945 art. XIV, § I, I. The scope of authority of the State Personnel Board and the Merit System was left to the legislature to define by statute. See SEIU v. Perdue, 280 Ga. 379 (2006).

The 1983 Georgia Constitution established the current State Personnel Board. GA. CONST. art. IV, § III, I. The Constitution sets forth that the State Personnel Board “shall provide policy direction for a State Merit System of Personnel Administration and may be vested with such additional powers and duties as provided by law.” Id. The duties and functions of the State Personnel Board and the State Merit System are delineated in a number of sections in Title 45 of the Georgia Code. The Merit System Act authorizes the Board to promulgate rules with the force and effect of law, binding on “classified” employees and the departments that employ any “classified” employees.

In 1996, in response to perceived inefficiencies in state government, the legislature amended the Merit System Act as part of “merit system reform.” Prior to the 1996 amendments, all executive branch employees had “classified” status unless specifically exempted by the statute. The 1996 amendments altered the definition of “unclassified” employee to include all new employees and new positions.2 Consequently, the majority of the state’s workforce is now unclassified, and by attrition the workforce will eventually comprise only unclassified employees.

In 2000, the General Assembly again amended the Merit System Act. Code section 45-20-1(a) now includes the following language:

It is further specifically the intent of the General Assembly that state government operate within a framework of consistent personnel policies and practices across all state agencies and entities and that the state’s most valued resource, its employees, be managed in a manner to promote work force productivity and sound business practices.

The amendment clarifies that positions filled by rehires will be unclassified and that a classified employee who accepts an unclassified position becomes unclassified. O.C.G.A. § 45-20-2 (15)(EE) and (GG). Also, “classified employee” and “classified position” were inserted in the sections defining “covered employee” and “covered position.” O.C.G.A. § 45-20-2(5) and (6). The legislature did not substantively change the law but rather the amendments may be seen as “housekeeping” measures.

Authority of the State Personnel Board

No question exists that the State Personnel Board may promulgate rules and policies governing classified employees. By definition, “classified employees” are subject to the “rules of the state merit system.” O.C.G.A. § 45-20-2(5). The Act defines “merit system rules and regulations” as “the governing provisions of the state merit system, as adopted by the State Personnel Board and approved by the Governor which gives force and effect to the policies of the State Personnel Board.” O.C.G.A. § 45-20-2(12).

Further, O.C.G.A. § 45-20-4(b)(3) establishes the binding effect of the Board rules over “covered departments.” O.C.G.A. § 45-20-2(8) defines “Department covered by the state merit system” as a department that “has one or more positions or employees subject to the State Merit System of Personnel Administration.” The definition of department specifically excludes authorities and public corporations. O.C.G.A. § 45-20-2(7). Thus, the Board has authority over departments with at least one classified employee.

The scope of the Board’s authority over unclassified employees and the agencies that employ them remains uncertain as the Merit System Act contains some inconsistencies. Code section 45-20-3(b)(3) provides that the State Personnel Board will “adopt and amend policies, rules, and regulations effectuating the State Merit System of Personnel Administration and the state’s personnel policies and practices with respect to employees in the classified and unclassified service subject to approval by the Governor.” The Act further authorizes the Board to “prescribe the guidelines by which the state’s personnel policies shall be administered.” O.C.G.A. § 45-20-3(a)(1). Yet, O.C.G.A. § 45-20-6(b) specifically dictates that unclassified positions “shall not be subject to the rules and regulations of the State Personnel Board.”

Although the Merit System Act requires the merit system to provide services to both classified and unclassified employees, in the absence of explicit legislation these duties are limited to “covered” departments. Code section 45-20-1(c) (Supp. 2006) sets forth a number of functions that the state merit system must perform with respect to employees in the unclassified service. The duties include establishing pay ranges, job classifications, employment applications, and state-wide model standards and best practices. Id. O.C.G.A. § 45-20-1(e) (Supp. 2006) provides that subsections (c) and (d)3 “shall not apply to the legislative or judicial branches, to the board of regents, or to any agency which employed no classified employees as of July 1, 1996.”

The Code, however, expressly authorizes the Board to promulgate rules for certain programs or benefits that affect unclassified employees and agencies that are not necessarily “covered.” See, e.g., O.C.G.A. §§ 45-20-70 through 45-20-71 (employee assistance program); O.C.G.A. §§ 45-21-1 through 45-21-9 (employee suggestion and awards); O.C.G.A. §§ 45-18-30 through 45-18-36 (deferred compensation); O.C.G.A. § 45-20-50 through 45-20-56 (charitable donations program). Additionally, O.C.G.A. § 45-20-16(a) (Supp. 2006) expressly requires the Board to promulgate rules for accrual and usage of leave, and directs all executive branch agencies, except the Board of Regents, to provide leave for unclassified employees “in the same manner and amount provided for employees in the classified service.” In light of these provisions, and following well-established rules of statutory construction, I conclude that express statutory authorization is required for the Board to promulgate rules or adopt policies that would be binding on agencies or departments not “covered” by the Merit System.

Authority of the Merit System Commissioner

Code section 45-20-4 creates the position of commissioner of personnel administration. The duties of the commissioner are set forth in the statute and include submitting “to the Governor the rules and regulations adopted by the State Personnel Board effectuating the state merit system.” O.C.G.A. § 45-20-4(b)(3). Additionally, the commissioner is charged with administering “the rules and regulations and all other operational aspects of the state merit system . . . .” O.C.G.A. § 45-20-4(b)(4). The Merit System Act, however, does not authorize the commissioner to promulgate rules or regulations that would be binding on departments, regardless of whether they are “covered” or not.

Grant of Authority by Executive Order

You have asked whether the Governor may confer the authority to create binding policies by executive order. The Governor may not use an executive order to contravene the provisions of a law enacted by the legislature. See 1980 Op. Att’y Gen. 80-49. That opinion concluded that the Governor may not extend a statute containing a “sunset provision” by executive order. Because it is the Governor’s duty to ensure “that the laws are faithfully executed,” the Governor cannot “circumvent the intent of the General Assembly” through an executive order; to conclude otherwise would raise “serious constitutional implications.” Id. at 100. Accordingly, the Governor cannot grant the Board authority to promulgate rules binding on departments or agencies that are not “covered” since it would conflict with the plain language of the Merit System Act.

Conclusion

Therefore, it is my official opinion that, absent explicit statutory provisions to the contrary, the Merit System Act does not generally authorize the State Personnel Board or the commissioner to promulgate rules or adopt policies that would be binding on agencies or departments that are not “covered,” nor can such rules or policies be promulgated pursuant to a gubernatorial executive order.

Prepared by:

Kathleen T. Gosden
Assistant Attorney General


 

1 The federal standards reflected a movement away from the “spoils system” to a system of merit selection.

2 The legislature could not remove the classified status of existing classified employees. See Clark v. State Pers. Bd., 252 Ga. 548, 550 (1984) (“merit system members entitled to such rights as the Merit System Act affords them at the time they assume a classified position”).

3 Code section 45 20 1(d) (Supp. 2006) sets forth the responsibilities of “employing agency” with respect to unclassified employees.