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 at Article 16, § 4 (and Amendment 35, § 7 specifically 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), at Ark. Code Ann. §§ 21-5-201 et seq., 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. The Act 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/

Original opinion text

Opinion No. 2017-080
October 18, 2017
Jeff Crow, Director
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Arkansas Game & Fish Commission
2 Natural Resources Drive
Little Rock, AR 72205
Dear Director Crow:

I am responding to your request for an opinion 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. 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 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.

[Full discussion of all four questions follows; due to length, only summary preserved here.]

DISCUSSION

Question 1: Base salaries and compensation differentials. The Commission may administer its employee-compensation plan using base salary levels and differentials, so long as these aspects of the plan are consistent with the Commission's constitutional and statutory authority. Act 365 does not prevent voluntary UCCA compliance. The Commission has discretion to compensate its employees within the bounds of the Arkansas Constitution (Article 16, § 4 and Amendment 35, § 7) and its appropriation act. The Commission cannot, however, pay differentials such that employees receive more than the legislature has fixed.

Question 2: Merit-based pay. The amended UCCA specifically authorizes merit-pay increases for Commission employees. Section 21-5-1101 describes a "merit-based pay system that incorporates pay and performance evaluation standards . . . and establishes criteria for payments for employees who meet requisite performance categories." The Commission's appropriation act will ultimately authorize or disallow this component of its compensation plan.

Question 3: Salary adjustments including cost-of-living. Employees of state entities exempted from the UCCA are still eligible for a "salary increase or a line item maximum increase" under Ark. Code Ann. § 21-5-211. But a "cost of living adjustment," as such, is not available under section 21-5-211 or elsewhere in the amended UCCA after Act 365's elimination of that category. To the extent proposed cost-of-living adjustments qualify as "salary increases" or "line item maximum increases" under section 21-5-211, those adjustments would be permissible.

Question 4: AASIS. 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." Most agencies and departments of Arkansas State Government use the system. References to AASIS are scant in the Arkansas Code. No statute or regulation prohibits the Commission (now that it is largely exempt from the UCCA) from continuing to use AASIS. The cooperation duty in § 21-5-207(a)(3) is limited: it requires OPM to assist exempt entities with position classification, not with broader personnel services. If OPM and the Commission agree to utilize AASIS jointly, that use is permissible.

Sincerely,

Attorney General