After Act 365 of 2017 exempted Arkansas Game and Fish from the UCCA, can it still use the same compensation rules?

Plain-English summary

Game and Fish Commission Director Jeff Crow asked four related questions about the Commission's compensation authority after Act 365 of 2017 took effect. Act 365 amended Ark. Code Ann. § 21-5-204(a) to add the Commission to the list of agencies exempted from the Uniform Classification and Compensation Act (the "UCCA"). With that exemption in place, could the Commission still administer compensation using base salaries plus differentials? Could it use a merit-pay system? Could it apply UCCA-style salary adjustments? Could it keep using AASIS, the statewide accounting and HR system?

The AG answered yes to all four, with caveats. The bottom line: Act 365 took the Commission out of mandatory UCCA compliance, but did not forbid voluntary compliance. The Commission has greater budgetary autonomy than ordinary state agencies (it's a constitutional commission under Amendment 35), and it can pattern its compensation plan on UCCA practices. What it cannot do is exceed the maximum salary levels fixed by the General Assembly through its appropriation act.

Three threads run through the analysis:

The constitutional baseline in Ark. Const. art. 16, § 4 (and Amendment 35, § 7 for the Commission) requires the legislature to fix the salaries and expenses of state employees. So whatever compensation methods the Commission adopts, the resulting individual salaries cannot exceed the appropriation-act maximums. Going over those maximums would create the Gipson v. Ingram problem: an employee receiving "a greater salary than fixed by the Legislature."

The amended UCCA itself preserves some carve-outs that apply to the Commission anyway. Even exempted agencies remain eligible for "merit pay increases" under Ark. Code Ann. § 21-5-1101 and "salary increases or line item maximum increases" under § 21-5-211. The Act expressly authorizes those for exempt entities. Cost-of-living adjustments as a separate category were eliminated from the UCCA by Act 365, though some increases that look like COLAs may qualify under § 21-5-211.

For AASIS, the AG's reading was that there's no prohibition on a state entity using the system. But the cooperation duty owed to non-UCCA agencies by the Office of Personnel Management under § 21-5-207(a)(3) is narrow: it covers position classification, not full personnel services. So AASIS use can continue if OPM and the Commission both agree, but it isn't owed as of right.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The Uniform Classification and Compensation Act (UCCA), as described in Ark. Code Ann. § 21-5-202, establishes "uniform classifications" and "a uniform compensation plan" using "sound business management practices" for state employees in covered agencies. The UCCA defines pay grades, sets maximum salary levels, and authorizes specific kinds of additional compensation: base salary at § 21-5-202; compensation differentials at § 21-5-221 (including for hazardous duty and shift assignments); merit pay at § 21-5-1101; and ordinary salary increases at § 21-5-211.

Act 365 of 2017 amended § 21-5-204(a) to add the Game and Fish Commission to the list of agencies "this subchapter does not apply to." The same Act eliminated cost-of-living adjustments as a UCCA category and adjusted other compensation provisions. The Act took effect July 1, 2017.

The Commission's constitutional autonomy comes from Amendment 35 of the Arkansas Constitution, which establishes the Game and Fish Commission and specifically makes its salaries subject to legislative approval through specific appropriation items. Chaffin v. Ark. Game & Fish Comm'n (Ark. 1988) recognized the Commission's "greater budgetary discretion than other state agencies that are not independent constitutional agencies."

The cooperation provision in § 21-5-207(a)(3) directs OPM to "cooperate with any other state agency, department, board, commission, or institution that is not covered by [the UCCA] which may wish to voluntarily establish its positions into classifications in a like manner as provided in this subchapter." That language is narrow on its face: classification, not full personnel administration.

Common questions

Did Act 365 prohibit Game and Fish from using UCCA-style compensation rules? No. Act 365 removed mandatory compliance, but the Commission could still choose to follow UCCA practices. The AG saw no reason a constitutional commission could not voluntarily adopt sound compensation methods, subject to its appropriation.

Could the Commission pay differentials for hazardous duty or shift assignments? Yes, subject to its appropriation act. Differentials of the kind authorized by Ark. Code Ann. § 21-5-221 could be used voluntarily if they fit the Commission's funding.

Could the Commission set up a merit-pay system?
Yes. The amended UCCA expressly preserves merit-pay eligibility for exempted agencies under § 21-5-1101.

Did Act 365 eliminate cost-of-living adjustments?
Yes, as a separate category. But increases that fit within § 21-5-211 (one-percent FY 2018 increases, entry-pay raises, up to two-percent annual increases) could continue. The Commission's appropriation act would also matter.

Could the Commission keep using AASIS?
Yes, with cooperation from OPM. The AG saw no statute barring it. But OPM's duty to "cooperate" with exempt agencies under § 21-5-207(a)(3) is limited to position classification, not full HR services. AASIS access via OPM thus depends on agreement, not entitlement.

What's the absolute outer limit on Commission salaries? Whatever the appropriation act sets as the maximum pay level for each employee. Gipson v. Ingram and Ark. Code Ann. § 19-4-1601(b) prohibit paying state employees more than the legislature has fixed.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/
• Official PDF: https://opinionstorage.blob.core.windows.net/opinions/2017-080.pdf

Original opinion text

STATE OF ARKANSAS
ATTORN EY GENERAL
LESLIE FtUTLEDGE

Opinion No. 2017-080

October 18, 2017

Jeff Crow, Director
Arkansas Game & Fish Commission
2 Natural Resources Drive
Little Rock, AR 72205

Dear Director Crow:

I am responding to your request for an opm10n regarding the status of the Arkansas Game and Fish Commission under the Uniform Classification and Compensation Act ("UCCA"). Act 365 of 2017 largely exempts the Commission from mandatory compliance with the UCCA. 1 You ask about the Commission's current authority to administer its employee compensation plans and coordinate with the Office of Personnel Management. I have slightly paraphrased your questions as follows:

1) May the Commission administer its employee- compensation plan using base salary levels for classified positions (and additional compensation in the form of differentials for acquiring professional certifications, advanced education, hazardous-duty performance, shift assignments, etc.), so long as the Commission does not exceed the maximum pay level established for each employee by the General Assembly?

2) May the Commission administer its employee- compensation plan using a merit-based pay system that is consistent with Ark. Code Ann. § 21-5-1101, so long as

1
See Acts 2017, No. 365, § 9 (amending Ark. Code Ann. § 2 l-5-204(a)).

323 CENTER STREET. Su n E 200 ' LI TTLE ROCK. ARKANSAS 7220 I TELEP HONE (501) 682-2007 · FAX (501) 682 -8084 ARKAN SAS AG.GOV

Jeff Crow, Director
AG&FComm'n
Opinion No. 2017-080
Page 2

the Commission does not exceed the maximum pay level for each employee established by the General Assembly?

3) May the Commission administer its employee- compensation plan using salary adjustments, including cost-of-living adjustments, that are consistent with the procedure outlined in Ark. Code Ann. § 21-5-211, so long as the Commission does not exceed the maximum pay level for each employee established by the General Assembly?

4) May the Commission continue utilizing the Arkansas Administrative Statewide Information System, in cooperation with the Office of Personnel Management, for purposes of administering its employee-compensation plan?

RESPONSE

While the Commission is largely exempt from the UCCA, I see no reason why it cannot follow the statute voluntarily. The Commission may continue to administer its employee-compensation plan in a manner consistent with the UCCA, so long as the plan satisfies the constitutional and statutory provisions governing the Commission's budgetary authority. I would therefore answer your first three questions in the affirmative. With respect to your fourth question, I believe the Commission can continue to utilize the Arkansas Administrative Statewide Information System ("AASIS") because there is no statute or regulation prohibiting it from doing so. However, there does not appear to be any requirement that the Commission have access to AASIS for purposes of administering its employee-compensation plan.

DISCUSSION

Question 1: May the Commission administer its employee-compensation plan using base salary levels for classified positions (and additional compensation in the form of differentials for acquiring professional certifications, advanced education, hazardous-duty performance, shift assignments, etc.), so long as the Commission does not exceed the maximum pay level established for each employee by the General Assembly?

Jeff Crow, Director
AG&FComm'n
Opinion No. 2017-080
Page 3

In my opm1on, the answer is "yes." The Commission may administer its employee-compensation plan using base salary levels and additional compensation in the form of differentials, so long as these aspects of the compensation plan are consistent with the Commission's constitutional and statutory authority. I reach this conclusion for two reasons. First, Act 365 of 2017 ("the Act") does not prevent the Commission from voluntarily complying with the UCCA. Second, the Commission has discretion to compensate its employees within the bounds of the Arkansas Constitution and the applicable appropriation act.

Because it requires assessing the effect of the Act on the Arkansas Code, your question is essentially one of statutory interpretation. My primary task is to construe the Act "just as it reads" in order to "give effect to the intent of the General Assembly." 2 The Act must be "read in a harmonious manner[,] if possible," with other statutes covering the same subject matter. 3 But to the extent the Act "conveys a clear and definite meaning, there is no need to resort to the rules of statutory construction." 4

The Act "revise[ d] the compensation plan under the Uniform Classification and Compensation Act" and "amend[ed] various laws concerning state employee salaries and benefits." 5 Relevant to your first question, the Act generally exempted employees of the Commission from the UCCA, 6 the subchapter that establishes "uniform classifications" and "a uniform compensation plan" 7 for affected state employees. The UCCA specifically authorizes a "base salary" as

2
Brock v. Townsell, 2009 Ark. 224 at 9, 309 S.W.3d 179, 185-86 (internal citations omitted).
3
City of Ft. Smith v. Tate, 311 Ark. 405, 409-10, 844 S.W.2d 356, 359 (1993) ("All statutes on the same subject are in pari materia and must be . . . made to stand if capable of being reconciled."); see also Green v. Mills, 339 Ark. 200, 205, 4 S.W.3d 493, 496 (1999). 4 Brock, 2009 Ark. at *9, 309 S.W.3d at 186 (noting that a court "construes [a] statute so that no word is left void, superfluous, or insignificant," such that "meaning and effect are given to every word."). 5 Acts 2017, No. 365, title section. The Act took effect on July 1, 2017. See id. at § 29 ("Emergency Clause"). 6 See id. at § 9 (stating that "this subchapter does not apply to ... employees of ... [t]he Arkansas State Game and Fish Commission.") (to be codified at Ark. Code Ann.§ 21-5-204(a)(4)). 7 Ark. Code Ann.§ 21-5-202(a) (Rep!. 2016).

Jeff Crow, Director
AG&FComm'n
Opinion No. 2017-080
Page 4

well as a "compensation differential" 8 for qualifying employees, such as those whose duty assignments are "physically hazardous or dangerous due to location, facility, services provided, or other factors .... " 9 I gather that prior to passage of the Act, the Commission compensated qualifying employees through base salaries as well as differentials. 10

The Commission may, in my opinion, continue to issue the base salaries and compensation differentials referenced in your first question. Generally speaking, the UCCA applies "sound business management practices" to the administration of "uniform position classification[s] and compensation plan[s]." 11 Among other things, the Act amended the UCCA by adding the Commission to the list of "agencies excluded" 12 from the uniform statute. But it is conceivable that the "sound business management practices" 13 informing the UCCA might independently guide the Commission's compensation plan (for example, its formulation of base salaries and compensation differentials). Especially since the Commission has greater budgetary discretion than "other state agencies that are not independent constitutional agencies," 14 I believe the Commission could choose to pattern its salaries and differentials on the "sound ... practices" embodied in the UCCA. 15

Likewise, the UCCA indicates that the compensation plan for a given entity (even one subject to the statute) is primarily governed by the entity's "existing

8
Ark. Code Ann.§ 21-5-221(Supp.2016).
9
Id. at§ 21-5-221(c)(l)(A).
10
See, e.g., Op. Request, p. 2 (noting the "base salaries and differential pay [Commission] employees historically haw received ... pursuant to the UCCA."). 11 Ark. Code.Ann.§ 21-5-202(b).
12
Acts 2017, No. 365, § 9. See the responses to Questions 2 and 3, if!fra, for a discussion of the limited ways in which the amended UCCA applies to the Commission. 13 Ark. Code Ann.§ 21-5-202(b).
14
Chaffin v. Ark. Game & Fish Comm 'n, 296 Ark. 431, 438, 757 S.W.2d 950, 954 (1988).
15
Ark. Code Ann.§ 21-5-202(b); accord Op. Att'y Gen. 2010-89 (opining that "the Commission can comply with any and all state systems for financial management on a voluntary basis.").

Jeff Crow, Director
AG&FComm'n
Opinion No. 2017-080
Page 5

appropriation." 16 If the "appropriation act of the state agency specifically allows the state agency to provide salary increases" not contemplated by the UCCA, then the "special language" from the appropriation will control. 17 This recognizes the constitutional principle that the legislature generally "shall fix the salaries and fees" 18 of state employees, including employees of the Commission.

The Commission therefore cannot pay compensation differentials to such a degree that its employees "receiv[e] a greater salary than fixed by the Legislature." 19 But generally, compensation differentials might be valid if consistent with the applicable appropriation act. Deciding whether a given differential is valid in terms of the Commission's appropriation exceeds the scope of my duties in responding to an opinion request. 20

Question 2: May the Commission administer its employee-compensation plan using a merit-based pay system that is consistent with Ark. Code Ann. § 21-5- 1101, so long as the Commission does not exceed the maximum pay level for each employee established by the General Assembly?

In my opinion, "yes." The UCCA as amended by the Act specifically authorizes merit-pay increases for Commission employees. That is, an employee of an entity exempted from the UCCA is nevertheless eligible for a "merit pay increase" 21 under Ark. Code Ann. § 21-5-1101. Section 21-5-1101, in tum, describes a 16 Acts 2017, No. 365, § 20 (amending Ark. Code Ann. § 21-5-221(b)(l)(C) ("Authorization for one ( 1) or more compensation differentials may be approved if the ... cost of implementing and maintaining a compensation differential is within the state agency's existing appropriation .... ")). 17 Ark. Code Ann.§ 21-5-205(a) (Rep!. 2016).
18
Ark. Const. art. 16, § 4; see also Ark. Const. amend. 35, § 7 ("The Commission shall elect ... personnel, office assistants, wardens, game refuge keepers, and hatchery employees, whose salaries and expenditures must be submitted to the Legislature and approved by an Act covering specific items in the appropriation as covered by Article XVI Section 4 of the Constitution."). 19 Gipson v. Ingram, 215 Ark. 812, 821, 223 S. W.2d 595, 600 ( 1949); accord Ark. Code Ann. § 19-4-1601(b) (Rep!. 2016) (stating that "no greater salary or fee than that fixed by the law shall be paid to any ... ·employee."). 20 See, e.g., Op. Att'y Gen. 2017-022 ("I must emphasize, however, that .. legal counsel should be consulted when considering the proposed use of ... revenues."). 21 Acts 2017, No. 365, § 9 (amending Ark. Code Ann.§ 21-5-204(b)(l)(B)).

Jeff Crow, Director
AG&FComm'n
Opinion No. 2017-080
Page 6

"merit-based pay system that incorporates pay and performance evaluation standards . . . and establishes criteria for payments for employees who meet requisite performance categories."22 Thus, the plain language of the amended UCCA allows the Commission to offer employees a "merit-based pay system." But it is ultimately the Commission's appropriation act that would authorize (or disallow) this component of its employee-compensation plan.

Question 3: May the Commission administer its employee-compensation plan using salary adjustments, including cost-of-living adjustments, that are consistent with the procedure outlined in Ark. Code Ann.§ 21-5-211, so long as the Commission does not exceed the maximum pay level for each employee established by the General Assembly?

In my opinion, ':yes." Employees of state entities exempted from the UCCA are still eligible for a "salary increase or a line item maximum increase" 23 under Ark. Code Ann. § 21-5-211. And section 21-5-211 describes the following salary increases: one-percent increases in Fiscal Year 2018 over employees' cunent salaries, increases to the entry pay-level for employees whose salaries are less than the entry level, and the potential for increases of up to two percent each fiscal year. 24 But a "cost of living adjustment," as such, is not available under section 21-5-211 or elsewhere in the amended UCCA. 25

Because the Act eliminated cost of living adjustments from the UCCA, I cannot state with certainty that "salary adjustments, including cost of living adjustments," 26 are authorized by the amended statute. However, to the extent the cost of living adjustments proposed by the Commission qualify as "salary increases" or "line item maximum increases'' under section 21-5-211, these adjustments would be permissible. 27

22 ld. at§ 27.
23
Id at§ 9 (amending Ark. Code Ann.§ 21-5 .. 204(b)(l)(A)).
24
Id. at§ 16 (amending Ark. Code Ann. § 21-5-211 ). ·

?.::; Id. at§§ 9, 16.
26
Op. Request, p. 2.
27
Ark. Code Ann.§ 21-5-204(b)(l)(A).

Jeff Crow, Director
AG&FComm'n
Opinion No. 2017-080
Page 7

In all events, the Commission's appropriation act wiJl control. And the appropriation might authorize cost of living increases. Whether salary adjustments, including cost of living increases, are justified under a given appropriation act is a matter beyond the scope of an opinion response.

Question 4: May the Commission continue utilizing the Arkansas Administrative Statewide Information System, in cooperation with the Office of Personnel Management, for purposes of administering its employee- compensation plan?

I believe the answer is "yes," in the sense that there is no prohibition on the Commission using AASIS. AASIS is a "database resource management tool that encompasses many types of information for management use in addition to accounting data, such as budgeting, purchasing and human resource management 28
•••• " "[M]ost agencies and departments of Arkansas State Government" use the 29 system, which is organized under regulations promulgated by the Department of Finance and Administration. Your opinion request states that prior to passage of the Act, the Commission relied on AASIS in cooperation with the Office of Personnel Management ("OPM") 30 in order to administer its employee- compensation plan. References to AASIS are scant in the Arkansas Code, 31 and I am not aware of any statute or regulation prohibiting the Commission (now that it is largely exempt from the UCCA) from continuing to use AASIS in this manner. Certainly, utilizing AASIS for employee compensation would be consistent with its

28
Ark. Admin. Code 006.09.1 Rl-19-4-504 ("Overview of the Financial Management System").

29 Id.

30
The Office of Personnel Management is under the "direction, control, and supervision of the Director of the Department of Finance and Administration." Ark. Code Ann. § 25-8-103 (Rep!. 2016). 31 In total, "AASIS" and "Arkansas Administrative Statewide Information System" appear twice in the Arkansas Code: once in the UCCA itself (as a classification for the position of AASIS Administrator), and once in the Arkansas Scholarship Lottery Act. See Ark. Code Ann. § 21-5·· 208(b); Ark. Code Ann. § 23-115-308(a) (Supp. 2015). And the Arkansas Administrative Code has one reference to "AASIS" or the "Arkansas Administrative Statewide Information System" in conjunction with the Commission. See Ark. Admin. Code 006.09.3 ("State Vehicle Fleet Management Guide").

Jeff Crow, Director
AG&FComm'n
Opinion No. 2017-080
Page 8

establishment as a tool for manipulating "accounting data, such as budgeting, purchasing and human resource management .... '' 32

However, you ask specifically about the Commission's use of AASIS in "cooperation" with OPM. I interpret "cooperation" in this context as referring to personnel assistance that OPM must provide the Commission. The most relevant statute is Ark. Code Ann. § 21-5-207, which defines OPM's responsibilities with respect to the UCCA. Among other things, OPM must ''cooperate with any other state agency, department, board, commission, or institution that is not covered by
[the UCCA] which may wish to voluntarily establish its positions into classifications in a like manner as provided in this subchapter for state agencies covered by it. " 33 In my opinion, OPM is required to cooperate with exempt entities in order to assist with position classification, whereas more plenary personnel assistance from OPM is reserved to non-exempt entities. 34 First, section 21-5-207(a)(3) expressly couches OP~I's duty to cooperate in terms of establishing an exempt entity's 35
'·positions into classifications in like manner as provided in this subchapter .... " 36
And under the UCCA . establishment of classifications is both a term of art and a specifically defined t~sk for OPM. 37 Second, section 21-5-207(a)(3) is the only
-----------·----
2
' Ark.. Admin. Cech 006.09.1 Rl-i9-4-504.
33
Acts 2017, No. 365, § 12.
34
See, e.g., Ark. Code Ann. §§ 2l-5-703(a)(12) (directing OPM to "provide assistance to state agencies in identifying, developing, and maintaining training and resource programs."), (a)(14) (directing OPM to "review and approve both the classification and number of positions for each state agen:~y on a biennial basis and provide a recommendation to the Legislative Council.").

:is See MacSteel Div. o..lQuanex v. Arkansas Oklahoma Gas ·corp., 363 Ark. 22, 31, 210 S.WJd 878, 883 (2005) ("The ... express designation of one thing may properly be construed to mean the exclusion of ar10ther.") (citation omitted). 36 See Arf:> of 2017, No. 365, § 13 (listing Clas-; Codes, Titles, and Grades for numerous p0sition5, "rnbject to the appropriation acts of the various state agencies affected by this s ubchapter. "). 31 See Ark. Code Ann.§§ 2!-5-207(a)(l) (sta!ing thatOPM must ''dctermin•~ that each position of a state agency affected by this subchapter is allocated to a class having a written class specification"), (a)(2) (stating that OPM must "assist the various state agencies in the allocation of positions to classes established in this subchapter . . . and ... disallow the allocation of a position to a da.ss t'1at is not in conformance with this subchapter"); see also Ark. Code Ann. § 21-5-2 J l (a) ("The Offic.e of Personnel Management ha.<> administrative responsibility for

Jeff Crow, Director
AG&F Comm'n
Opinion No. 2017-080
Page 9

part of the UCCA in which OPM is directed to assist state entities Hnot covered by this suhchapter." Given that section 21-5-207(a)(3) should be construed ')ust as it 38 reads," I believe that OPM's duty to cooperate is limited to establishing position classifications for an exempt entity as if that entity were subject to the UCCA.

1:'he same rationale applies to whether OPM must employ AASIS, or otherwise make it available, when cooperating with a UCCA-exempt entity. Section 21-5- 207(a)(3) does not mention AASIS in terms of OPM's duty to cooperate. Indeed, the amended UCCA refers to AASIS only once, as a position classification. 39 Because a court "will not add words [to a statute] to convey a meaning that is not 40 there," I do not believe OPM's duty to "cooperate" with an exempt entity necessarily requires utilization of AASlS. But as noted above, there is no prohibition on a state entity using AASIS to administer its employee- compensation plan. Should OPM and an exempt entity such as the Commission agree to utilize AAIS jointly for this purpose, such a use of AASIS would undoubtedly be permissible.

Sincerely,

~~
Attorney C,eneral

-----------------
enforcing compliance by state agenci~s affected by this subchapt~r in irnplem~nting classification and grade changes"). 38 Brock, 2009 Ark. 224 at 9, 309 S.W.3d at 185-86 (internal citations omitted).
39
Ark. Code Ann. § 2J-5 .. 208(b) (establishing Class Code, Title, and Grade for "AASIS System Administrator").

°Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 339, 969 S.W.2d 190, 192 (1998); see also 4

McMillar1 v. Live Nation Entm 't, Inc., 2012 Ark. 166 at 5, n.2, 401 S.W.3d 473, 476 ("Adding words to a statute that is not ambiguous disregards the legislature's intent.'}