Interpretation of 36 M.R.S.A. §4563, subsection 5, relating to the personnel law and compensation

MAINE STATE LEGISLATURE The following document is provided by the LAW AND LEGISLATIVE DIGITAL LIBRARY at the Maine State Law and Legislative Reference Library http://legislature.maine.gov/lawlib Reproduced from scanned originals with text recognition applied (searchable text may contain some errors and/or omissions) STATE OF MAINE 79-) 11 lntcr-Dcpartn1entul Mernorandun1 Datc_J_u_n_e __ l_3_,_1_9_7_9 __ T Dan Harlan o ________________ _ Dept. Agriculture .,0 m ___ R_o_b_e_r_t_J_._s_t_o_l_t_,_D_e_p_u_t_y __ Depc. Attorney General Subject __ I_n_t_e_r_p_r_e_t_a_t_i_o_n_o_f_3_6_M_._R_. s_.A_._§_4_5_6_3__,., _s_u_b_s_e_c_t_i_· o_n __ 5 _________ _ Memorandum of Counsel This responds to your request for an interpretation of 36 M.R.S.A. § 4563, subsection 5, as it related to the personnel law and the provisions therein for setting compensation. Section 4563(5) authorizes the Maine Potato Commission, inter alia, to fix the compensation of the Executive Director and the Executive Director to engage other personnel. "Neither the empl9yment of the executive director ••• nor the employment of other employees by the executive director shall be subject to the Pers mnel Law." The authority granted by section 4563(5) is similar to the authority referred to in our opinion to.the Board of Nursing, a copy of which is enclosed. Its provisions are among those con- sidered in the footnote·on·the first page of that opinion. The Legislature has·1n each .succeeding year required the State Budget Officer and the Commissioner of Personnel 11 ••• to ensure that classified and unclassified positions are assigned to a proper pay grade within authorized funds." See P.L. 1979, c. 164, § 4, and Kempton v. Zitnay, 391 Me. 341 (Me., 1978}. Hence, classified or unclassified positions, not· subject to the Governor's determina- tion which were assigned to a pay grade as recommended by the Hay Study or the Temporary Compensation Review Board, or in the case of positions -created thereafter which have been assigned to a proper pay grade by the Commissioner of Personnel within authorized funds as ascertained by the State Budget Officer, are subject to the guidelines enunciated in our September 1976 opinion to the Board of Nursing. The only exceptions are positions whose compensation is subject to the Governor's detennination; estab- lished by statute; within the constitutional purview of a constitutional officer;. within the purview of the Legislature or the Legislative Council; or authorized by a statutory scheme enacted after P. & S.L. 1975, c. 147. Opinion of the Attorney General, September 21, 1976, supra. Page 2 In this instance the authority of section 4563(5) was in existence in 1975 and the positions to which it refers were considered by the Hay Study, T.C.R.B., the Commissioner of Personnel and the State Budget ·officer. The words "subject to the Personnel Law" are irrelevant to the question of compensation, as· those words speak to selection and tenure, i.e., classified vs. unclassified employment status. For a clearer understanding, ·see our opinions of May 10, 1976, to Lee M. Schepps, Director of the Bureau of Public Lands, and April 12, 1974, to G. Arnold Roach, Chairman of the Maine Potato Commission, copies attached for your convenience. RJS:mfe Enc. ROBERT J. STOLT Deputy Attorney General