Mr. George lyl. McNiel State Auditor Opinion No. M-706
Sam Houston State Office Bldg. Re: Legality of Legislative Austin, Texas Audit Committee authorization for agency heads to reclassify downward at time of conversionto

Dear Sir: new salary schedule provided in GeneralAppropriation Acts without a change in rate of pay. Your letter of September 11, 1970. asked for answers to the following questions:

"(1)The legality of the authorizationby the LegislativeAudit Committee for the heads of agencies and departments to make reclassificationsdownward at the time of conversion to new salary schedules established'inGeneralAppropriation Acts without a change in the employee's rate of pay; and "(2)The legality of the authorizationby the LegislativeAudit Committee for the Classification Officer to direct, in conformitywith Audit committee policy, that individualreclassifications to a lower salary group may be made without a change in the employee's rate of pay."
Your letter further states that there exists a conflict of opinion ofwhether a reclassification downward should be treated as a demotion in accordancewith Article V, House Bill 2, 2nd Called Session, 61st Legislature, governing "demotions" orwhether a reclassificationdownward is accomplishedby the

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

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

**“ An**  employee whose classificationposition is reallocatedby thisAct to a lower salary group shall receive **the** annual rate which he would have received had **the** position notbeen 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 classificationto a position in another classification in a lower salary group. An employeewho is demoted shall have his salary ,reducedat least to a rate one incrementbelow the rate he receivedbefore demotion." (Emphasisadded.) Article 6252-11, the Position ClassificationAct of 1961, reads, in part, as follows:

**“ Sec.**  **4.** Commencingwith the effective date of **this** Act, all regular full-time salaried employments with the exceptions and deferments specified hereinabwe shallbe made only in conformitywith the classes ofwork described in such Position Classification Plan, and under the titles authorized by such Plan. The State Auditor shall examine or cause tobe.examined in periodic post-audits of expenditures of State departments and agencies, and by such methods as he deems appropriate and adequate, whether employmentshave been made in accordance with the prwisions of thisAct, and shall report the facts as found to the GWernOr, the Comptroller, and the LegislativeAudit 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 revealedby personnel audits, the Classification Officer shall notify the agency head inwriting and specify the points of nonconformity or violation. The executivehead of such agency shall then have reasonable opportunity to resolve the exception or end the violationby reassigning the employee 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 'newclass description ofwork.and:. :~ salarv ranqe to correct the exception or violation." (Emphasisadded.)
We answer both of your questionsby saying that the reclassificationdownward,whether at the time of conversion **to the**  **tiew salary**  schedule or by individualreclassification 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 reclassificationsapart from demotions in Section le(1)which reads in part **as** follows:

8,

. . .Reclassification shallnot be interpreted to mean a change in the emulovee's duty assiqnment.but only shall mean the proper definition of duties and classifications of the position based upon duties actually performedby the employee; hence, a position shallbe reclassified for the sole purpose of complvinqwith the requirements of the ClassificationAct." (Emphasisadded.) The act further provides for a reduction in salary in the event a classification audit determines that a position is classifiedhigher than iswarranted by actual duty assignments, (Section le(2) of the Act) according to **the** "...policies and procedures as the Legislative Audit Committeemay 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 reclassifications downward wfthout change in duty assignments,may be made either at the time of conversion to new salary schedules orby individualreclassificationsduring a fiscalyear 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 Preparedby 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 ExecutiveAssistant NOLAWBITB Fir*+ .P.7I.c.Ce."C