Can a Tennessee state agency use a worker's disciplinary record to deny the across-the-board 1.6% raise from the 2011 budget?

Subject

Opinion No. 12-01, State Employee Salaries, January 6, 2012

Plain-English summary

Senator Marrero asked whether the executive branch could include an employee's disciplinary record as a reason to deny the 2011 across-the-board state employee raise. The AG said yes, reading two provisions of the 2011 Appropriations Act together.

Section 49 created an automatic 1.6% raise for all state employees, with one exception: an employee whose work performance is unsatisfactory can be denied. The denial must be in a written statement from the department or agency head, detailing the circumstances, and the employee must get an opportunity to respond.

Section 30 governs state salary administration broadly. With a few narrow exceptions for the offices of the Attorney General, Judicial Branch, Treasurer, Comptroller, Secretary of State, Fiscal Review Committee, and Joint Legislative Services Committee, "all salaries and wages in departments, institutions, offices and agencies" require the approval of the Commissioner of Human Resources, and the salary ranges require the approval of the Commissioner of Finance and Administration. The provision places no specific conditions on approval or disapproval.

The AG took those two sections together and concluded the executive has broad discretion to define what counts as "work performance" for Section 49 purposes. Disciplinary history is a reasonable element of work performance. Standard statutory construction principles (State v. Adams, Carver v. Citizens Utility Co.) supported reading Sections 30 and 49 in harmony rather than in conflict, with Section 30's wide discretion informing the scope of Section 49.

The opinion is short and the holding is narrow: the executive may consider disciplinary history, and doing so does not violate the Act or any other Tennessee law, provided the Section 49 procedural protections (written statement, opportunity to respond) are observed.

Currency note

This opinion was issued in 2012. 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.

Tennessee enacts an appropriations act each year. The 2011 Act's specific provisions cited here applied to that fiscal year's raise. The underlying discretionary authority of HR and F&A Commissioners has been a stable feature of successive appropriations acts, though specific section numbers and percentages vary.

Background and statutory framework

The 1.6% across-the-board raise. 2011 Tenn. Pub. Acts 473, § 49. Applies to all state employees unless denied on the basis of unsatisfactory work performance. The Act does not define "work performance."

Procedural protections on denial. § 49 requires the head of the department or agency to write a statement detailing the circumstances of the denial, and the employee must have an opportunity to respond.

Broader salary-approval authority. 2011 Tenn. Pub. Acts 473, § 30: "[A]ll other salaries and wages in departments, institutions, offices, and agencies shall be approved by the Commissioner of Human Resources, provided, however, that the establishment of salary ranges within such departments, institutions, offices, and agencies shall be subject to the approval of the Commissioner of Finance and Administration." Narrow exceptions for AG/Reporter, Judicial Branch, Treasurer, Comptroller, Secretary of State, Fiscal Review Committee, and Joint Legislative Services Committee.

Statutory construction rules. State v. Adams, 24 S.W.3d 289, 295 (Tenn. 2000) (statutes sharing a common purpose construed together); Carver v. Citizens Utility Co., 954 S.W.2d 34, 35 (Tenn. 1997) (goal is to avoid conflict and provide harmonious operation).

Common questions

What does "unsatisfactory work performance" mean if the agency uses it to deny a raise?

The Act doesn't define it, and the AG didn't impose a definition. Standard understanding includes job-task performance plus workplace conduct. The executive has discretion to include disciplinary history within the term, as long as procedural protections are followed.

Can the employee challenge the denial?

Section 49 requires a written statement of reasons and an opportunity for the employee to respond. The opinion didn't address what happens after the response, which would depend on the relevant agency personnel rules and the state civil service framework.

Does this apply to employees of the excluded offices?

No. Section 30 carves out the offices of the Attorney General, the Judicial Branch, the Treasurer, the Comptroller, the Secretary of State, the Fiscal Review Committee, and the Joint Legislative Services Committee. Those offices set their own salary rules.

What if the employee was disciplined long ago?

The AG didn't address timing. Reasonableness review would presumably look at whether old or unrelated discipline is genuinely a sign of current unsatisfactory work. Agencies should be careful to tie the denial to relevant, reasonably recent conduct.

What if the across-the-board raise number changes in future budgets?

The reasoning would apply by analogy to similar provisions in future appropriations acts. Each year's act controls; the executive discretion follows the same pattern.

Citations

• 2011 Tenn. Pub. Acts 473, § 30
• 2011 Tenn. Pub. Acts 473, § 49
• State v. Adams, 24 S.W.3d 289 (Tenn. 2000)
• Carver v. Citizens Utility Co., 954 S.W.2d 34 (Tenn. 1997)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-001.pdf

Original opinion text

January 6, 2012
Opinion No. 12-01
State Employee Salaries

QUESTION

Do the provisions of the 2011 Appropriations Act grant discretion to the Executive Branch to include consideration of an employee's disciplinary history in withholding a pay raise to that employee?

OPINION

Yes. The interpretation of the term "work performance" to include an employee's disciplinary history in determining whether that employee is entitled to a salary increase is reasonable, particularly in light of the broad discretion the Appropriations Act of 2011 provides to the Commissioners of Human Resources and Finance and Administration to generally establish and approve State employee salary levels.

ANALYSIS

The 2011 Appropriations Act provides an "across-the-board" 1.6% salary increase for all State of Tennessee employees. See 2011 Tenn. Pub. Acts 473, § 49. This 1.6% salary increase is applicable to all state employees "unless an employee is denied on the basis of unsatisfactory work performance." Id. The Act does not define the term "work performance." The Act provides that a denial for unsatisfactory work performance "shall be set forth in a statement from the head of the department or agency detailing the circumstances surrounding the denial" and that the denied employee is allowed an opportunity to respond to the reasons for denial. Id.

The Appropriations Act further states that, with a few noted narrow exceptions,[1] all "salaries and wages in departments, institutions, offices and agencies shall be approved by the Commissioner of Human Resources, provided, however, that the establishment of salary ranges within such departments, institutions, offices and agencies shall be subject to the approval of the Commissioner of Finance and Administration." Id., at § 30.

Thus, under Section 30, all state employee salaries (outside of those few specifically excluded departments) must be approved by the Commissioners of Human Resources and Finance and Administration before they can be paid out of the appropriations made by the Act. Section 30 thereby confers very broad authority on the Commissioners and places no conditions on the Commissioners' approval or disapproval of salary levels. This authority granted under Section 30 must be read in concert with Section 49, which provides for denial of the 1.6% salary increase to employees whose work performance is unsatisfactory. See State v Adams, 24 S.W.3d 289, 295 (Tenn. 2000) (where two or more statutes share a common purpose, then all other statutes must be considered when construing any one of them); Carver v. Citizens Utility Co., 954 S.W.2d 34, 35 (Tenn. 1997) (one goal of statutory construction is to avoid conflict and provide for a harmonious operation of the laws). In light of the wide discretion granted by Section 30 to the Commissioners of Human Resources and Finance and Administration to approve salaries and wages in various departments, it necessarily follows that the Executive Branch under Section 49 has similar discretion to determine the appropriate elements of satisfactory work performance of these same State employees for purposes of allowing a salary increase.

Disallowing salary increases for employees whose work performance, including workplace conduct, is unsatisfactory is a reasonable exercise of the broad authority afforded to the Commissioners of Human Resources and Finance and Administration under Sections 30 and 49 of the Appropriations Act. Thus, the decision by the Executive Branch to include an employee's disciplinary history as a component of unsatisfactory work conduct in disallowing salary increases for State employees does not violate either the Act or any other applicable Tennessee law, provided the Section 49 procedures for notice to affected employees are properly followed.

[1] Under Section 30, the salaries of employees of the Attorney General and Reporter, Judicial Branch, Treasurer, Comptroller, Secretary of State, Fiscal Review Committee, and the Joint Legislative Services Committee are not subject to approval by the Commissioners of Human Resources and Finance and Administration. See 2011 Tenn. Pub. Acts 473, § 30.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ADAM B. FUTRELL
Assistant Attorney General

Requested by:
The Honorable Beverly Marrero
State Senator
312 War Memorial Building
Nashville, TN 37243