OFFICIAL OPINION No. 11

OFFICIAL OPINION No. 11 Office of Administration-Executive Board-01•ertime Compensation to State Employees 1. In 4 Pa. Code §27.54 the Executive Board has authorized overtime compensation to State employees under certain stated conditions. 2. The authorization for overtime payments contained in 4 Pa. Code §27.54 is "ex- press" within the meaning of that word, as used in Section 215 of the Ad- ministrative Code of 1929, 71 P.S. §75. 3. 4 Pa. Code §27.54(b) does not authorize retroactive payments for overtime work in violation of Article III. ~26 of the Pennsylvania Constitution or of Section 215 of the Administrative Code of 1929, 71 P.S. §75. Honorable Ronald G. Lench Secretary of Administration Harrisburg, Pennsylvania Dear Secretary Lench: Harrisburg, Pa. February 15, 1974 You have requested an opinion as to the legality of Section 27.54(a) and (b), Title 4 of the Pennsylvania Code. This provision sets forth rules for the approval of overtime compensation as follows: (a) If it is not feasible. to grant a sal~ri~d e~ployee comp~n­ satory time off for overtime work and it is desired to pay him monetary compensation instead, a request for the payment of over- time compensation shall be submitted to and approved by the agency head prior to rendering of the overtime services. 40 OPINIONS OF THE ATTORNEY GENERAL (b) The payment of compensation for overtir:ne work i:na~ be ap- proved retroactively when an employee has given service 1!1 good faith, but any official responsible for a~ unwarranted delay m sub- mission of such a request may be equivalently surcharged. You have asked (1) Whether subsection (a), supra, is consistent with Section 215 of the Administrative Code of 1929; and (2) Whether subsection (b), supra, is consistent with either Sec- tion 215 of the Administrative Code, or Article III, § 26 of the Pennsylvania Constitution. You are advised that 4 Pa. Code ~27.54(a) and (b) is consistent with both the Administrative Code and the Pennsylvania Constitution. I. The Administrative Code states: No employee in any administrative department, independent administrative board or commission, or departmental administrative board or commission, shall be paid for extra service, unless expressly authorized by the Executive Board prior to the rendering of such ser- vices. 71 P.S. §75. This section makes express authorization by the Executive Board, prior to the rendering of overtime services by any employee of an administrative department, a prerequisite for payment for those services. Subsection (a) of Section 27.54 clearly provides authorization by the Executive Board for overtime compensation; however, a question exists as to whether this approval can be "ex- press" when the power to approve specific overtime payment is delegated to the agency head. In construing the term "express," it is necessary to employ the following rules of statutory construc- tion: (1) every statute should be construed, if possible, to give effect to all of its provisions. 1 Pa. S. §1921(a); (2) when the words of a statute are not explicit, the intention of th~ General A.ssef!1bly should be controlling and should be ascer- t?-med by cons1dermg, among other things, the object of the legisla- t10n, and the consequences of a particular interpretation 1 Pa S. §1921(c) (4), (6); · · (3) in ascertaining the intention of the General Assembly it is presumed that the General Assembly does not intend a result that OPINIONS OF THE ATTORNEY GENERAL 41 is absurd, impossible of execution, or unreasonable. 1 Pa. S. §1922(1). If the term ''express" is construea to mean specific authorization for each overtime payment made to each particular employee, the Executive Board, which is made up of the Governor and various cabinet officers, will be faced with the task of a detailed review of each proposed overtime payment of every employee throughout the Commonwealth. Such detailed review would be inconsistent with the broad authority conferred on d~partment heads by other provisions of the Administrative Code. See, e.g., 71 P.S. §66. Such a construction of the word "express" would also be at odds with such general objectives of the Administrative Code as the promotion of administrative efficiency and the use of sound management prin- ciples. To so construe the term "express," then, would be to presume that the Legislature intended an unreasonable and un- workable result inconsistent with the general objectives of the Ad- ministrative Code. 1 Pa. S. §1922(1). On the other hand, it is possible to construe the term "express" to mean that the Executive Board must clearly and unequivocally authorize overtime compensation in general before any particular employee may be so compensated. This construction is consistent with the general regulatory and policy-making functions of the Executive Board in other areas. See, e.g., 71 P.S. §249. Since this latter construction of the term "express" is consistent with common usage and with other statutory provisions in the Ad- ministrative Code, it is this meaning of the term against which 4 Pa. Code § 27.54 must be judged. In effect, Section 27.54(a) provides that a salaried employee may not be paid for overtime work unless: (1) It is not feasible to grant the employee compensatory time off for the overtime work; and (2) The employee has requested payment for the overtime work of the agency head prior to rendering the overtime services. Other regulations of the Executive Board establish the rate of payment for overtime compensation (4 Pa. Code §27.55); restric- tions on overtime compensation that apply to higher level employees (4 Pa. Code ~27.56); and special rules for overtime payments to institutional employees (4 Pa. Code §27.57). Taken together, these pro".isions clearly and un.e9uivocally aut~o~ize overtime compensat10n under stated cond1t10ns. In my opm10n, these provisions, including .Section 27.54, amount ~o an expr~ss authorization by the Executive Board for compensation to salaried employees who do overtime work. The delegation of authority to agency heads for the d~termii:atio_n of whether compensator:y: time off for overtime work 1s feasible 1s not an unlawful delegat10n of authority. 42 OPINIONS OF THE ATTORNEY GENERAL II. You have also asked whether Section 27.54(b) unlawfully provides for retroact_iv~ app_roval of overt~me compensation. S~c­ tion 215 of the Admm1strative Code reqmres that the Executive Board authorize overtime compensation "prior to the rendering of such services." 71 P.S. §75. Section 27.54(b) provides for the pay- ment of overtime compensation "retroactively when an employee has given his service in good faith." The term "retroactively" in subsection (b) does not refer to the authorization by the Executive Board that is expressed in Section 27.54, but to the review of a par- ticular overtime compensation by an agency head. Since Section 27.54 constitutes advance authorization for overtime payments, it is fully consistent with Section 215 of the Administrative Code. Article III, §26 of the Pennsylvania Constitution states that: No bill shall be passed giving extra compensation to any public officer, servant, employee, agent or contractor, after services shall have been rendered or contact made .... Because Section 215 of the Administrative Code prospectively authorizes overtime payments, compensation provided pursuant to Section 215 and to regulations of the Executive Board is not "extra compensation." Such payments are normal compensation for over- time service. Therefore, Section 27.54(b) does not conflict with Ar- ticle III, §26 of the Pennsylvania Constitution. In short, because the Executive Board has given proper advance authorization for certain types of overtime compensation in Sec- tion 27.54, that section does not provide for retroactive approval of overtime compensation in violation of either Section 215 of the Ad- ministrative Code or of Article III, §26 of the Pennsylvania Con- stitution. As you note in your letter requesting this Opinion, Section 27.54(a) and (b) provide an appropriate administrative mechanism for meeting emergencies. You are advised that Section 27.54 is not only administratively appropriate, but also conforms to law. Very truly yours, Robert F. Nagel Deputy Attorney General Israel Packel Attorney General OPINIONS OF THE ATTORNEY GENERAL 43