Obligations to county and local employees working in the C.E.P. program

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) .,, f I I I )U HICHARD S. COHEN ATTORNEY GENERAL STEPHEN L. DIAMOND JOHN S. GLEASON ,JOHN M. H. PATERSON UomrnT J. STOLT DEPUTY ATTORNEYS GENERAL STATE Oll' MAIN}~ DEPARTMENT 011 THE ATTORNEY GEN:EHAL AUGUSTA, MAINE 04333 July 30, 1979 Honorable J.P. Normand LaPlante Turcotte Road 8abattus, Maine 04280 Dear Representative LaPlante: On April 2, 1979, the Bureau of Civll I::meryency Prep.:.in..!dneE:ti advised all county and local governments of their obligations to county and local employees working in the C.E.P. program ~esulting from the pay package negotiated between the State and thc.M.S.E.A. The advice was as follows: "these State pay raises do not have Lo Lu puysad on to County employees that are under your State Personnel Merit System. Each County and Local Government is responsible for the wages of their employees." ., This advice was based on an inquiry by the Bureau of civi1 E:rn0.rgcncy Preparedness to the Federal Defense Cl vi 1 Prcpar.ednus:. Agency. I am attaching copies of the corresponcJcncc between tlw Maine Bureau of Civil Emergency Preparedness and the Federal Defense Civil Preparedness Agency in this matter. Salarlcs for some county offlci..1.ls arc ::;ct i..;pccif.ic..illy J,y :.1 .. 1111,,, for example Chapter 82 of the Public Laws of 1979 increased the curru11L salaries of certain county officials throughout the.~ Strite. :r hEtv<! attached a copy of Chapter 82 for your review. You wl L.L uot.0 Lil.ii 111,~ Legislature has set specific salaries for officials such as Sherif[, Judge of Probate and County Commissioners, but not for employees. Employee salaries are set by the County Commissioners within the personal services funclin0 limits f;ct by the lcqislntion in l'i'H' c:rn1111y budget. Chapter 23 of the Resolves of 1979 established tile lJudquL for Androscoggin County for calendar year 1979. Of particular intcnJ:J L is Appropriation Account No. 1015 for Civil Emergency Preparedness functions of Androscoggin County. Within that account $66,229.00 1.0 appropriated for personal services. You have asked whether or not Androscoggin County Civil Emcrqcncy Prcpareclness employees may be granted il pay raise by the county c:0111111 i :;- sioners without the approval of the county delegation of the Lcqislntun:':' -2- The answer to your question is in the affirmative. The county commissioners may grant pay raises to county C,E.P. employees without the approval of the county delegation or the Legislature. In our opinion of February 28, 1979 (copy attached) we said: •· ., 30 M.R.S.A. §201 (1978) provides that "[t]he COllr)ty commissioners in each county may appoint some suit- able person to serve as clerk to the county commis- sioners .••. " Section 801 of Title 30 also pro- vides that "[t]he salary of all clerks shall be determined by the county commissioners after receiv- ing a recommendation from the county officer under whom such clerk is employed." In view of the fore- going statutory provisions, it is apparent that the county commissioners have both the authority and the duty Lo control county expenditures, i.ncludi.nq setting the compensation of those employees whose salaries are not fixed by statute. See, ~:-9..:..' Sheltra v. Auger, Me. 376 A.2d 463, 464 (1977); Watts Detective Ac1£!19, Inc. v. Inhnbitnnl:s of County Qf Sagadahoc, 137 Me. 233, 237-38 (1941). . While the county commissioners may set the compensation of county employees, they must do so within the confines of the bu<l~Jct approval process set forth in 30 M.R.S.A. §252. Again, as we said in our opinion of February 28, 1979: As part of the county budget review process, Lhc,. Legislature has "the power to change or alter - specific line categories within the county estimates." 30 M.R.S.A. §253-A (1978). The salaries for all county officers and employees within a department or agency appear in the county estimates for that depart- ment or agency under the category of "Personnl 8crviceH," In view oI iL~ i:;LiJLul.or.y ,111ll111r·i1y lo make changes or alterations in "speclfic line t:alc- gories within the county estimates," the Legislature may increase or decrease the appro1,>riation av.::i i J.al1lu for personal services within a county department or agency. Consequently, the county commissioners have statutory discretion to set the salary for a county clcl'.'k, but t:hc Legislature, via the counly b11dqct review process, can set a ceiling on tho fun<lH ilvull- able for salaries and wages within a department or agency of county government. See Q_e. Attl.!._ Gen., February 1, 1976; QE..:_ Atty. Gen., Feoruary 1·;-7."-9,7. In the case at hand, the Androscoggin County Commiss\oners may grant pay raises to county C.E.P. employees as long as the cost of -3- those pay raises comes within the amount budgeted for personal services or the flexibility given the Commissioners to adjust those amounts through intradepartmental transfers or use of the contingent account. 30 M.R.S.A. §§251 and· /2.* t, .#IJ--~OL;- uty A~,t!orney General ,,/ RJS: jg * 'l'hc use oi intryclcpartrncnt..tl tr.An!;[er.:1 .:.1n<..l l.11l1 i:0111 i11qc•1il account is discussed more fully in the enclosed oi,,.inlon. RICHARD S, COltli.N ATTORNEY QENEAAL S•1°A'l'K 01' MAINII: DJ:a'Al~TMA:;1'1'1' Oil '1'Hl:: A'1"1'01<.N.ti:Y q~NlmAL AUGUlt'l'A, MAINII: uuaa Honorable Frank wood House of Representatives State House Augusta, Maine 04333 February 28, 1979 Dear Representative Woocl: l:>'flil'llliN L. u,h.uNIJ JOHN s. CUiASON JOHN M. R. PATlilUON k.OIJEKT J. STOLT DEPUTY ATTOHNl;Y:;i G~Nl;HAL This letter will respond to your oral rcqU(.!l;lt xqr an opinion regarding the Legislature's authority to regulate the salaries paid to certain county employees. In particu- lar, you have inquired regarding the extent to which tho Legislature, by means of the county budget review proco~~. can regulate the salary of a county clerk. 30 t1.R.S.A.~20l (19"/8) 1n·ovidc~ thi.lt "(t]hu ~uuni;y commissioners in each county may appoint some suitilblt) po:n;on to.serve as clerk to the county commissioners •••• " Section 801 of Title 30 also provides that 11 (t]ho salnry of .ill clm.-Jt!; shall be determined by the county commissioner~ after rocoivin<J a recommendation from the county officer under whom such clerk is employed." In view of the foregoing statutory provisions, it is apparent that the county commissioners have both tha authority and the duty to control county oxpondituro:.., includ.in~J setting the compensation of t~ose employees whoso salaric~ uru not fixed by sta.tute. §_££, £.:...U.•, ~~.:....!!,.U-9_(?.!:,, Mo., 1·1c_, A.2d 463, 464 (1977); Watts Detective /\qoncy, Inc. v. Inlwl,1.- tants of County of Sagacia'hoc7137-lic-.:-2·33-;-;(1·.,-::-3u-0:~;4yr:-···--· However, lthe county commissioners are craat.cd by st.ituto uncl tl'1,o aothority of tho county commit.tsion<J.r:.. to c<.Jnt:.1.·01 ,:ul111 Lv expenditures is subject to the ultimate control oJ: thu LulJit.il..t- ture. See State v. Vallee, 136 Me. 432, 446 (1940) • It i!> the responsibility of tho county commissioners to ~sscs~ u county tax each yoar and in doing ~o thoy arc rcqu.Lr<Ju to 1'.L"t:f>i.U"u u:,L:i- rnates of the anticipated exJ;>endi turcs for the yc£&r. . 30 M. H. ::i. J\. §252 (1978). It is provided by statute that these e~timates " ••• shall be drawn so as to authorize the appropriations to be made to each depart- ment or agency of the county government for the year. Such estimates shall provide spec- ific amounts for personal services, contractual services, commoditios, debt sorvico and cwPit~l Honorable Frank Wood February 2~, 1979 Page two · expenditures." 30 M.R.S.A. §252 (1978). The county estimates are submitted to the Legislature for review and approval. 30. M.R.S.A. §253 (1978). The county estimates, as amended and adopted by the Legislature, cons- titute the county budget. Id. As part of the county budget review process, the Legis- lature has "the power to change or alter specific line cate- gories within the county estimates." 30 M.R.S.A.~253-A (1978). 'l'hc salaries for all county officers and employees within c1 department or agency appear in the county estimates for that 1 department or agency under the category of "Personal Services." In view of its statutory authority to make changes or· alterations in "specific line categories within the county ostimaJ:.os," tho Legislature may increase or decrease the appropriation avail- able for personal services within a county department or c1goncy. Consequently, the county commissioners have statutory discretion to set the salary for a county clerk, but the Legislature, via the county budget review process, can set a ceiling on the funds available for salaries and wages within a department or agcncv of county government. ~ Q_p. Atty. \,en., February 12, 197G; Op. ~tty. Gen., February l, 1977. + You have also inquired whether tho county comrnisnioncn: can increase the legislatively approved appropriation for personal services within a department or agency, by means of intra-depart- mental transfers or use of the contingency fund. 30 M.R.S.A.~2~2 (1978) provides in relevant part: "Whenever any specific approprintion of a department or agency of county government shall prove insufficient to pay tho rcquirc<l expenditures for the statutory purposes for which such appropriation was made, the ~ounty commissioners may, upon written request of such department or agency, transfer from any other specific line appropriation of the same department or agency an amount as required to meet such expenditures, provided that such request shall bear the written approval of the majority of tho county commissioners. There is established a contingent acco~t in each county in an amount not to exceed $50,000. Such funds as are available to each county may be used for this purpose. This 1. Each department or agency of countygovernmont also sul:mits a "Salaries and Wages Detail Sheet" which lists the e;;timatcd salaries and wages by position. · Honorable Frank Wood February 27, 1979 Page three fund shall be used for emergency purposes only at the discretion of the county comm- issioners." '·· Dy permitting the county commissioners to make intra-depart- mental transfers and to use the contingent account, the Legis- lature obviously recognized that unforseen circumstances may necessitate a deviation from the legislatively approved county budget. See Op. Atty.Gen., February 1, 1977; QE. Atty. Gen., June 22, I"9'77. The ability to utilize the contingent account and to make intra-departmental transfers affords the county commissioners some degree of flexibility in administering the 2 fiscal affairs of the county. ~ 30 M.R.S.A. §251(1978 Supp.) With respect to intra-departmental transfers, it is apparent that such transfers are permissible only where a specific appropriation proves insufficient for the statutory purposes for which it was made. Where the Legislature has approved a specific appropriation for personal services for a county department or agency, it would seem that such appropria- tion would never prove insufficient for the statutory purposes for which it was made. 1 Use of the contingent account is allowable only· for "emergency purposes." What constitutes an emergency within the meaning of 30 M.R.S.A.S252 (1978 Supp.) is for the county commissioners, acting within the range of their statutory ais- cretion, to decide. I would point out, however, that we have indicated on several occasions that intra-department transfers and transfers from the contingent account should not bo used as devices to frustrata legislative intent. Op. ~tty. ~en., June 22, 19771 Op. Attv. Gen., February 1, 1977; Op. J\tty. G~, February 12, 1976. 2. 30 M.R.S.A.§251 (1978 Supp.) provides in pertinent part: "They [the county'cornmissioners) shall examine, allow and settle accounts of the receipts and expenditures of the moneys of the county; represent it; have the care of its property and manaqemont of its business; ••• keep their books and accounts on such forms and in such manner as shall be approved by the State Department of Audit; and perform all other duties required by law." I I I Hnornble Frank Wood February 27, 1979 Page four '·· ... I have taken the liberty of attaching copies of~four opinions from this office3which deal with matters similar to those you have raised. I hope this information is help- ful. Please feel free to call upon me again if I can be of further assistance. ( Enclosures -~ 3. The opinions are dated April 30, 1975, February 12, 1976, February l, 1977, June 22, 1977. • .. ►;, I D . l M d April' 2. 1979 nter- cpartmenca emoran um Date:-----·--------· 0 All Counties & Subdivision_s ___ _ From Admi n is t ra tw.iive~Ow.f~f .1-ljce.lie<J-r __ , __ _ Subj~"-- Potential Pav Raises For Stilt(• Emµ)Q,YP('S, 0c:,,,. c iv; l E111ergency Preparedness 0c,,,. Civi J Emergency Preparedness We have written to DCPA Region I requesting a ruling relative to the potential pay raises neqotiated between the State of Maine and the union and its effect relative to County.and Local Employees. The following is an excerpt from the reply received at this office this dat~: 11We have determined that these State pay rahes do not have to be passed on to County employees that are under your State Personnel Merit System. Each County and Local Government is responsible for the wages of their e111ployees. 11 The above stat~ment means that any pay raises or wages paid to employees working for C.E.P. in the Counties and Locals will be determined strictly by the qoverninq body in that entity. We request that this infonnation be passed on to ~ny of your locals that have employees involved and paid for·workin~ in the C.E.P. program. This heudqudrters is aware at the present tillie of all wa~es being paid now ,md uny chanqes made in the future should be forwarded to us immediately. ,J 'J'/.:,) I ,,, • , , rd,_ .L'.. • ,r_w. fl,i I://, ____ _ Scott B ., · ohn5on Achuinistrutivc Offi<.:cr Organization Wide latitude has always been permitted in the organization and managt:ment of merit systems where substantially al1 employees tn the State and local government are covered by that system, but!· fa 1 rly detailed requirements were prescribed for approx1mttely one third of the States which establish cooperative inter-ogency merit systems to meet the Federal requirement. Thh distinction is removed· in these standards and various types of personnel organizations are accepted as long as they provide for 1mpert1al administration of the personnel sys~ern. Another significant change is a waiver of the Standards for small local governments not now covered by a State or local merit system, if the chief executive agrees to administer grant-aided programs consistent with the six merit principles in the l11ter-governmcntc1l Personnel Act. This recognizes that in many smal 1 local govern- ments it may not be cost effective to establish i1 merit personnel sysLcm sol<.!ly in orc.lur to llu clif!iblc for Federal urdnts. · -~ Reft.!r't!nce: Ft.:DCRAL IU:GISTER, dated Friday, fet,rui.lry 16, 1979, Part 111 Office of Personnel Mirnage111ent ~L,mdurd~ fur a Mcril Sy~lt:111 of l>cr!.unrwl Atl111i11istr1.1Liw1 Finul Rule~ Revision DU'ENSli CIVIL PIE.I' AllliDNESS AGENCY Region One Federal Re11cJoal Center Maynard, Maaucbuaetta 017M Mr. Leslie B. Higgins Acting Director March 29, 1979 Bu rcau of Civil Emt:rgency Preparedness State Office lluih.ling 1 Augusta, Maine 04330 Attention: Mr. Scott 13. Johni:;on Administrative Officer D<.!ar Mr. I Jiggins: W c have reviewed your correspondence dated March 21, 1979 concerning pay ruisus that weru votcu for oil State employees, We have ueterminuu that these ~rate pay ruisei:; rJo not ha¥c tu be passed on to County employacs that are under your Stuw personnel Merit System. Each County govurnmem is rusponsihlc for the wages of their employees in their own County. Our only requirement h:i that County am.I Local e1nploycc~8 he govc.:rnl:tl hy un uccc.:pu.:d per~onncl Mur.H: Syswm, i. c. Stare.:, County, or Local. Mr. Foxwell and Mr. Mel )onalu, of my office, huvc diHcw;::;ed tlds matter and Mr. FoxwclJ has Lletorminuu thut there w Hi be no audit cxcupUum; on County wagm, ai:; Llctcrminc.:tl by County government. They c..lo not have to be equal to Stuw employees wages. ~>-· •'.) ,. UUREAU OF CIVIL f.Ml:l~C[NCY PREPAREDNESS !il,\I[ tHJU~I: • AUull:.I _.,, N.,\lfil 1°,I ;·, I • •'/0/J G'i'J 6101 - l.)~l'M'IMLNI' Of MILHAkV • CIVIL LMlk(il 1' ◄1 'i' l'lll l'i\lll L>I ,1 '•\• • V(Tl;WA~.~ ~,1.INIC.I'~ --- March 21 , 1979 Ltr. #109-79-2 Allan R. Zenowitz, Director Defense Civil Preparedness Agency Reqion One - Federal Regional Center Mi.1.vr11.1l'il, McJ~sc1chu~etts 01754 Attn: Oon Foxwell & John McDonald Dc:,.ir· Ml'. Lc.rnowi tl: This ll!tter is in reference to a contract arrived at bC!twcen the Maint Sldte t:111ployl!c~ Association and the State of Milinc.: for pi.1y ri.1ises effe<~iv'.? shortly. Wilh ,·c11c.1rd to thc!>e pay raises, we c1rc i.1i,ki114 for iJ clcJrificcJtion of how they wi 11 affect county and local employees. Thc•,e c:mi,loyc.w:. dr<! not con~idc.mitl st,Jte c111ployncs; hc.rncc.: tt,cy c.1re not directly ir1volvcd Lut i.1rc ~1ovt!rncd IJy tl11: ';tcJtc f>l.!rsonrwl Ml!ri t Sy~le111 bctausc cc,u11tic:; irnd loci.lh do not liuvl.! ,111 e~lcJIJlhl1cd merit :.y~tcm. t R1·l1.1liv,! lo wi.11Jt!S, tht! followiug will aJ,Jply l.o !>ldlc (!111ployccs: I. /', JJdYll1<:r1L of $l!J.OO pcr Wl:1.!k retro11•.liv1: lo July 1, l'J/B thru M,11d1, l'J/11 \'lil I 1,e 111iJde in ii one-time JJdyment. Tlii:. $l!J.OO ptir wed ~i_l_l_ 11_u_L 111• ,1il11t•il I.II LIii! 11,I'..(! poy. Wu i.lr(! i.lS!iumin,,. s incc Lhh ,,,11:-l 11111• IMY111ent lS not cJddl'd lo Ll11! lii1•,1: IMY, tl111L p,1y11K!nl of !.ilml! tu county ,mcJ lurdl 1:111ploye1!~ would l,1: r,p ti1,11iJl lo ltic l!ntily involv1:d. 'I.. 1\1,r i I I , I 'J /IJ Ll11:ru w i l l h<: dd1ll:1I tu t.l1r! !, t,11.o 1•1111,l oy,~r!S' p,1 y t If,. llll µ1:r Wt!<.:~. ,July 1, 1!17Y there will I.Jc L1<ld1!d cJllolher ll!J.IJO or t,·.t lo L111: •,l,111: r:1111'1oy1:c•,' Ld~C p,1y. Iii•• I 1r•.1. p,,ri111r·,111h r,I LIii'.. lt:tt.er rofon 1.11 d rl,1rific,1tiun of ncr/\ rc:quin•1111·11I•, 1,,,. 111i1l.c.hi111J turuJ•, 11,r LIil! cuu11ty L1111J 101.111 w11pl11yr:1:•, •,11 Lh,1I. L111•n• ~11II 111· 111 1 q1,r:•,Li1,11 ir1 ,myo111:'~ mind d!. lo how thc~e r11hc!. <;,l1uuld ,1p11I.Y, /\11 r,11•,t••, 111 .. 11· 1.,,,r11:tl ,ir1: 1<,r tul I Liul<! ('10 hr.). rwr11wrw11l per~or111el. Page 2 - Ltr. #109-79-2 - Don Foxwell & John McDonald Problems that will be encountered particularly in the County Headquarters are: 1. A lack of funds. •· ., 2. Raises. if applicable. could in some cases bring the employee pay up equal to the County Director or possibly more. J. Employees working for C.E.P. in the counties coul~ very well be drawiny more pay in comparison to other county workers doing comparative work and this would tend to create morale problems. An early reply is requested so we can inform al 1 concerned in order that they can take the necessary steps to comply w1 th DCPA requirements. !:i inc.:crc I y • Les 1 it! o. llinCJins Ar.ti1111 Director Uy: Scott U. John!.1111 Admini<:.trativt- Officer.