May 6, 1998

 Civil Division - New Castle County

The Honorable Harriet Smith Windsor
State Personnel Office
Townsend Building 
401 Federal Street, Suite 5
Dover, DE 19901

Re: Authority to Delegate Approval of Certain Personnel
Transactions

Dear Dr. Windsor:

Pursuant to a report from the Office of Auditor of Accounts, you
requested an informal opinion from the Attorney General as to
whether 29 Del.C. §5943(f) permits the State Personnel Director
to delegate final authority for approving personnel transactions
to individual state agencies. We conclude that the State
Personnel Director's delegation of final authority to an agency
does not violate Delaware law.

Twenty-nine Del.C. §5943(d) provides that a person who is
appointed improperly under Delaware law or the Merit Rules but
who nonetheless renders services to the state may maintain an
action against any officer to recover agreed wages and benefits
or both. In addition, §5943(e) provides that it is the
obligation of the appointing authority to determine that the
documents necessary for placing a person on the state payroll
are properly executed prior to the initial hiring, promotion,
demotion or any other change in an employee's position in state
employment. The statute provides examples of the proper
documentation for such personnel transactions. Id.
Section 5943(f) provides:

For the purpose of subsections (d) and (e) of this section, the Director of Personnel or the Director's designee shall determine whether an employee is properly appointed. The Director or the Director's designee shall certify the appointment by approving the state personnel transaction supplied by the agency.

29 Del.C. §5943(f). Moreover, subsection (f) provides that the
certification of the appointment relieves the appointing
authority of any liability for an improper appointment except in
cases of fraud.

Historically, an appointing authority would complete a Personnel
Action Request ("PAR-34") form documenting new hires, promotions
and changes of address or paygrade relating to state employees.
These forms would be forwarded to the State Personnel Director
for approval. The Office of State Personnel would then perform
the simple ministerial task of confirming the documentation
submitted, indicating approval by the signature of the State
Personnel Director. 

On May 6, 1981, the then State Personnel Director delegated the
final approval of these personnel transactions to individual
state agencies submitting the forms. As a result, PAR-34 forms
are no longer reviewed and forwarded to the State Personnel
Office. Instead, the forms are computer generated electronically
and forwarded directly to the Department of Finance/Payroll. You
have advised that there are approximately 50,000 PAR-34 forms
completed each year.
 
Section 5943(f) does not restrict the Director's ability to
delegate. In other words, the Director may delegate her
responsibility under §5943(f) to a proper state agency at her
sole election. Moreover, this delegation to state agencies is
reasonably related to the Director's duty to "encourage the
development of more effective personnel administration with the
departments and agencies in the state service." 29 Del. C.
§5911(4). Effective personnel administration requires the
avoidance of unnecessary ministerial acts to effectuate a
personnel transaction within an agency. 

The delegation of this authority was made to agency personnel,
specifically Human Resource professionals, who receive training
and support from State Personnel Office on all aspects of
personnel administration. There is no evidence that any state
agency has improperly certified a personnel transaction without
appropriate documentation, nor that any such transaction failed
to receive final approval. Therefore, we conclude that the
delegation by the State Personnel Director to individual state
agencies of her authority to determine whether an employee is
properly appointed does not violate any statute.
 
Please feel free to contact us if you have any questions or
comments.

Very truly yours,


MARSHA KRAMARCK
Deputy Attorney General


ELIZABETH DANIELLO MARON
Deputy Attorney General

APPROVED:

_________________
MICHAEL J. RICH, 
State Solicitor

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