ATTORNEY GENERAL HENRY HAS REQUESTED I REVIEW AND RESPOND TO YOUR REQUEST FOR AN OFFICIAL OPINION ANSWERING THE FOLLOWING QUESTIONS:
"ARE CLASS SPECIFICATIONS RULES, AS DEFINED BY THE ADMINISTRATIVE PROCEDURES ACT?
IF THE ANSWER TO THE FIRST QUESTION IS YES, IS THE OFFICE OF PERSONNEL MANAGEMENT REQUIRED TO FOLLOW THE PROCEDURES FOR THE ADOPTION, AMENDMENT OR REPEAL OF RULES PER THE ADMINISTRATIVE PROCEDURES ACT?"
THE UNDERSIGNED HAS REVIEWED THE EXAMPLES OF CLASS SPECIFICATIONS FORWARDED WITH YOUR REQUEST FOR OPINION. IN ADDITION, YOUR CORRESPONDENCE REFLECTS THAT THERE PRESENTLY EXIST SPECIFIC MERIT SYSTEM OF PERSONNEL ADMINISTRATION RULES WHICH HAVE BEEN ENACTED PURSUANT TO THE ADMINISTRATIVE PROCEDURES ACT TO SPECIFICALLY ADDRESS THE PROCESS FOR ADOPTION OF PERSONNEL SPECIFICATIONS FOR THE COUNTLESS JOB DESCRIPTIONS AND POSITIONS IN THE STATE OF OKLAHOMA WORKFORCE. I HAVE DISCUSSED THIS MATTER WITH YOUR ASSIGNED LIAISON COUNSEL WHO HAS INDICATED THAT DISCUSSION OF THE QUESTIONS RAISED IN THE CONTEXT OF AN INFORMAL REPLY TO YOUR REQUEST FOR OPINION IS ACCEPTABLE.
THE ADMINISTRATIVE PROCEDURES ACT, 75 Ohio St. 250 (1989) ET SEQ., AS YOU KNOW, OUTLINES IN GREAT DETAIL THE PROCEDURES BY WHICH AGENCIES WITHIN STATE GOVERNMENT ARE TO ADOPT, AMEND OR REPEAL A RULE. THE OFFICE OF PERSONNEL MANAGEMENT IS NOT EXEMPT FROM THESE STATUTORY RULEMAKING PROCEDURES. 75 Ohio St. 250.4.
A "RULE" IS DEFINED BY THE ACT AS:
. . . ANY AGENCY STATEMENT OR GROUP OF RELATED STATEMENTS OF GENERAL APPLICABILITY AND FUTURE EFFECT THAT IMPLEMENTS, INTERPRETS OR PRESCRIBES LAW OR POLICY, OR DESCRIBES THE PROCEDURE OR PRACTICE REQUIREMENTS OF THE AGENCY. THE TERM INCLUDES THE AMENDMENT OR REVOCATION OF AN EFFECTIVE RULE BUT DOES NOT INCLUDE:
A. THE ISSUANCE, RENEWAL, DENIAL, SUSPENSION OR REVOCATION OR OTHER SANCTION OF AN INDIVIDUAL SPECIFIC LICENSE;
B. THE APPROVAL, DISAPPROVAL OR PRESCRIPTION OF RATES;
C. STATEMENTS AND MEMORANDA CONCERNING ONLY THE INTERNAL MANAGEMENT OF AN AGENCY AND NOT AFFECTING PRIVATE RIGHTS OR PROCEDURES AVAILABLE TO THE PUBLIC;
D. DECLARATORY RULINGS ISSUED PURSUANT TO SECTION 307 OF THIS TITLE; OR
E. ORDERS RESULTING FROM INDIVIDUAL PROCEEDINGS; . . .
WHAT DOES THE FUNCTION OF ADOPTION OF SPECIFIC JOB DESCRIPTIONS CONSTITUTE? THIS ACTIVITY DOES NOT CONSTITUTE THE ISSUANCE, RENEWAL, DENIAL, SUSPENSION, REVOCATION OR OTHER SANCTION OF AN INDIVIDUAL SPECIFIC LICENSE NOR DOES IT INVOLVE THE SETTING OF RATES, ISSUANCE OF DECLARATORY RULINGS OR ISSUANCE OF ORDERS RESULTING FROM INDIVIDUAL PROCEEDINGS. NOR IS THE ADOPTION OF SPECIFIC JOB DESCRIPTIONS OR SPECIFICATIONS MERELY AN INTERNAL FUNCTION OF THE OFFICE OF PERSONNEL MANAGEMENT, FOR IF IT WERE, THE FUNCTION WOULD ALSO BE RELIEVED FROM RULEMAKING REQUIREMENTS.
THIS QUESTION HINGES ON WHETHER JOB SPECIFICATIONS ARE OPM STATEMENTS OF GENERAL APPLICABILITY AND FUTURE EFFECT THAT IMPLEMENT, INTERPRET OR PRESCRIBE LAW OR POLICY, OR DESCRIBE THE PROCEDURE OR PRACTICE REQUIREMENTS OF THE OPM.
JOB SPECIFICATIONS ARE SPECIFIC IN NATURE TO THE PARTICULAR DUTIES INVOLVED IN STATE WORKFORCE JOB ASSIGNMENTS. OPM HAS PROPERLY PROMULGATED RULES WHICH INDICATE HOW A JOB SPECIFICATION OR DESCRIPTION IS DETERMINED. OPM HAS ALSO PROMULGATED RULES WHICH GOVERN THE METHOD BY WHICH AN AGENCY OR EMPLOYEE MAY CHALLENGE ALLOCATION OR MAY REQUEST JOB SPECIFICATION ANALYSIS.
IT IS THE OPINION OF THIS AUTHOR THAT THE RULES WHICH HAVE BEEN PROMULGATED BY OPM REGARDING THE DETERMINATION, ANALYSIS OR CHALLENGE TO PARTICULAR JOB SPECIFICATIONS ARE "STATEMENTS OF GENERAL APPLICABILITY AND FUTURE EFFECT" AND THUS RULES UNDER THE APA, BUT THAT THE SPECIFIC JOB DESCRIPTIONS OR SPECIFICATIONS RESULTING FROM APPLICATION OF THOSE PROCEDURES ARE NOT RULES UNDER THE APA. IF THE PREMISE THAT THE PROCEDURE FOR DETERMINING SPECIFIC JOB DESCRIPTIONS OR SPECIFICATIONS IS A RULEMAKING ACT IS ACCEPTED, IT FOLLOWS THAT THE SPECIFIC JOB DESCRIPTION OR SPECIFICATION WHICH FLOWS OUT OF THAT PROCEDURE IS NOT A RULE BUT THE PRODUCT OF A PROCEDURE.
IT IS ONLY NECESSARY THAT THE OPM PROMULGATE RULES, SUCH AS THOSE PREVIOUSLY DISCUSSED, WHICH DESCRIBE HOW THOSE SPECIFICATIONS ARE DETERMINED, HOW THE SPECIFICATIONS MAY BE APPEALED, TO WHOM THE SPECIFICATIONS APPLY AND HOW THE SPECIFICATIONS APPLY, AND ANY OTHER EFFECT JOB SPECIFICATIONS MAY HAVE ON STATE EMPLOYEES. SPECIFIC JOB DESCRIPTIONS ARE NOT RULES UNDER THE APA, NOR ARE THEY ORDERS, DECLARATORY RULINGS OR RATES; THEY FALL OUTSIDE ANY OF THE DESCRIPTIONS OF RULES OR EXEMPTIONS TO THE RULEMAKING PROCESS DESCRIBED IN THE APA.
IF YOU HAVE ANY ADDITIONAL QUESTIONS, PLEASE DO NOT HESITATE TO CONTACT OUR OFFICE AT YOUR CONVENIENCE.
(JANIE SIMMS HIPP)
