Mr. George lyl.
              McNiel                  Opinion No. M-706
State Auditor
Sam Houston State Office Bldg.        Re:   Legality of Legislative
Austin, Texas                               Audit Committee authoriza-
                                            tion for agency heads to
                                            reclassify downward at
                                            time of conversion to
                                            new salary schedule pro-
                                            vided in General Appro-
                                            priation Acts without a
Dear Sir:                                   change in rate of pay.

          Your letter of September 11, 1970. asked for answers
to the following questions:

          "(1) The legality of the authorization by the
     Legislative Audit Committee for the heads of agencies
     and departments to make reclassifications downward
     at the time of conversion to new salary schedules
     established'in General Appropriation Acts without
     a change in the employee's rate of pay; and

          "(2) The legality of the authorization by the
     Legislative Audit Committee for the Classification
     Officer to direct, in conformity with Audit committee
     policy, that individual reclassifications to a lower
     salary group may be made without a change in the em-
     ployee's rate of pay."

          Your letter further states that there exists a con-
flict of opinion of whether a reclassification downward should
be treated as a demotion in accordance with Article V, House Bill
2, 2nd Called Session, 61st Legislature, governing "demotions"
or whether a reclassification downward is accomplished by the



                            - 3414-
’




    Mr. George W. McNiel, page   2      (M-706)




    4th paragraph of the act.    Paragraph 4 of the act reads as
    follows:

              “An employee whose classification position
         is reallocated by this Act to a lower salary group
         shall receive the annual rate which he would have
         received had the position not been reallocated, not
         to exceed the step 7 rate of the lower salary group."

              Section l(3) reads as follows:

              "DEMOTIONS. Demotion means a chancrein dutv
         assisnment of an employee from a position in one
         classification to a position in another classifi-
         cation in a lower salary group. An employee who is
         demoted shall have his salary ,reducedat least to a
         rate one increment below the rate he received before
         demotion." (Emphasis added.)

              Article 6252-11, the Position Classification Act of
    1961, reads, in part, as follows:

               “Sec. 4. Commencing with the effective date
         of this  Act,all regular full-time salaried employ-
         ments with the exceptions and deferments specified
         hereinabwe shall be made only in conformity with
         the classes of work described in such Position
         Classification Plan, and under the titles authorized
         by such Plan. The State Auditor shall examine or
         cause to be.examined in periodic post-audits of ex-
         penditures of State departments and agencies, and
         by such methods as he deems appropriate and adequate,
         whether employments have been made in accordance
         with the prwisions of this Act, and shall report
         the facts as found to the GWernOr,  the Comptroller,
         and the Legislative Audit Committee."

              Section 6 of the Act reads, in part, as follows:




                                     -3415-
Mr. George W. McRiel, page 3      (M-706)



          "When exceptions to or violations of the
     position Classification Plan or of prescribed
     salary ranges are revealed by personnel audits, the
     Classification Officer shall notify the agency head
     in writing and specify the points of nonconformity or
     violation. The executive head of such agency shall
     then have reasonable opportunity to resolve the ex-
     ception or end the violation by reassigning the em-
     ployee to another position title or class consistent
     with the work actually performed, by changing the
     employee's title or salary rate to conform to the
     prescribed Classification Plan and salarv ranse,  or
     by obtaining a 'new class description of work.and:. :~
     salarv ranqe to correct the exception or violation."
     (Emphasis added.)

           We answer both of your questions by saying that the
reclassification downward, whether at the time of conversion
to the tiew salary schedule or by individual reclassification
during a fiscal year where there is no change in the employee's
duty assignment, may be made without a change in the employee’s
rate of pay, not to exceed step 7 rate of the lower salary group.

          The Act specifically sets reclassifications apart from
demotions in Section le(1) which reads in part as follows:
          8,
           . . . Reclassification shall not be inter-
     preted to mean a change in the emulovee's duty
     assiqnment. but only shall mean the proper defini-
     tion of duties and classifications of the position
     based upon duties actually performed by the employee;
     hence, a position shall be reclassified for the
     sole purpose of complvinq with the requirements of
     the Classification Act." (Emphasis added.)

          The act further provides for a reduction in salary in
the event a classification audit determines that a position is
classified higher than is warranted by actual duty assignments,
(Section le(2) of the Act) according to the "... policies and
procedures as the Legislative Audit Committee may prescribe."


                               -3416-
Mr. George W. Mdbliel,page 4    (M-706)




          Under the prwisions of Article V, House Bill 2, Acts
of the'second Called Session, 61st Legislature, job reclassifi-
cations downward wfthout change in duty assignments, may be
made either at the time of conversion to new salary schedules
or by individual reclassifications during a fiscal year without
a reduction in the employee's rate of pay, not to exceed step 7
of the lower salary group.

                           SUMMARY

          State employees under the classification system
     may be reclassified downward, without change in duty
     assignment, without a mandatory reduction in rate of
     pay, not to exceed step 7 rate of the lower salary
     g-w.




                                     Attor   y General of Texas

Prepared by Melvin E. Corley
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

J. C. Davis
John Reeves
Roger Tyler
Houghton Brownlee

MKADB P. GRIFFIN
Staff Legal Assistant
ALFRBDWALKER
Executive Assistant
NOLAWBITB
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