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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