Opinion
March 12, 2004
71 MUNICIPALITIES 77 OFFICERS
Fireman who is reinstated to his former position of assistant fire chief is not entitled to overtime compensation for hours he would have been on call but in fact did not work.
Mayor Tim J. Tregle P. O. Box 1218 Morgan City, LA 70381
Dear Mayor Tregle:
You advise this office that fireman Sidney Roy had received a non-disciplinary demotion from the position of assistant chief to captain within the Morgan City Fire Department. Mr. Roy was subsequently reinstated to the position of assistant chief by your civil service board.
The municipality reimbursed Mr. Roy the difference between pay of a captain and that of assistant chief retroactive to the date of demotion. In addition, the municipality paid the appropriate contributions for the position of assistant chief to the retirement system for that period.
You state that the duties of assistant fire chief include being placed on call once every third week. During his period of demotion, Mr. Roy was not an assistant fire chief; another assistant chief was placed on call and paid compensatory time for hours worked. Mr. Roy now claims he is entitled to compensatory time for the weeks he would have been scheduled to be on call. You ask if the municipality should pay Mr. Roy compensatory time for hours he did not work.
Our response is in the negative. Compensatory time is an earned benefit. This office has previously determined that the payment of funds as wages for hours which have not been earned violates Article VII, § 14 of the Louisiana Constitution of 1974, which prohibits the donation of public funds. See Attorney General Opinions 02-0360 and 86-0652, copies attached.
We hope the foregoing is helpful to you. Should you have other questions in which we may provide assistance, please contact this office.
Very truly yours, CHARLES C. FOTI, JR. ATTORNEY GENERAL
BY: ______/s/______________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL
OPINION NUMBER 86-652
January 5, 1987
71 Municipalities 77 Officers
Article VII, Section 14 of the Louisiana Constitution of 1974, LSA-R.S. 33:404, LSA-R.S. 14:138
Payment of wages for hours not worked is in contravention of Louisiana Constitution. The mayor is the chief municipal administrative officer and given the authority to supervise and direct the day to day operation of all municipal departments and agencies.
Mr. Dorman L. Guilliams Director of Public Works Post Office Box 509 Winnfield, Louisiana 71483
Dear Mr. Guilliams:
You requested an opinion from this office concerning the powers and authority of the members of the board of aldermen for the City of Winnfield.
First of all you questioned the payment of wages to employees for forty hours when the time cards do not indicate that the employees have worked forty hours.
Article VII, Section 14 of the Louisiana Constitution of 1974, addresses the donation of public property and funds. It provides, in pertinent part, as follows:
Section 14. (A) Prohibited Uses. Except as otherwise provided by this constitution, the funds, credit, property, of things of value of the state or of any political subdivision shall not be banded, pledged, or donated to or for any person, association, or corporation. public or private. Neither the state nor a political subdivision shall subscribe to or purchase the stock of a corporation or association or for any private enterprise.
The payment of funds as wages for hours which have not been earned would be a donation of public funds. This is prohibited by Article VII. Section 14 of the Louisiana Constitution of 1974. Therefore, it is the opinion of this office that payment of funds, as wages, to employees for a forty hour work period when the employees have not worked the forty hours is in contravention of Article VII. Section 14 of the Louisiana Constitution of 1974.
LSA-R.S. 14:138 of the Criminal Code addresses the crime of Public Pay Roll Fraud. It provides:
Public payroll fraud is committed when:
(1) Any person shall knowingly receive any payment of compensation, or knowingly permit his name to be carried on any employment list or pay roll for any payment of compensation from the state, for services not actually rendered by himself, or for services grossly inadequate for the payment or compensation received or to be received according to such employment list or pay roll; or
(2) Any public officer or public employee shall carry, cause to be carried, or permit to be carried, directly or indirectly, upon the employement list or pay roll of his office, the name of any person as employee, or shall pay any employee, with knowledge that such employee is receiving payment or compensation for services not actually rendered by said employee or for services grossly inadequate for such payment or compensation.
This article shall not apply in a situation where a bona fide public officer or public employee, who is justifiably absent from his job or position for a reasonable time, continues to receive his usual compensation or a part thereof.
Whoever commits the crime of public pay roll fraud shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than two years, or both.
As indicated in the statute quoted above, public pay roll fraud is committed when any public officer pays any employee compensation for services not actually rendered by the employee. Thus, not only is the payment of the questioned wages in violation of the Louisiana Constitution, but such payment is a crime punishable by the payment of a fine or imprisonment.
The remainder of your questions concerned the authority of the members of the council to direct city employees to perform job related tasks and dictate operational procedures for the employees, such as determining work schedules. LSA-R.S. 33:404 addresses the duties and powers of a Lawrason Act mayor. The provision gives the mayor supervisory and administrative authority of all departments and agencies other than a police department with an elected chief of police. It provides, in pertinent part, as follows:
A. The mayor shall have the following powers, duties, and responsibilities:
(1) To supervise and direct the administration and operation of all municipal departments, offices, and agencies, other than a police department with an elected chief of police, in conformity with ordinances adopted by the board of aldermen and with applicable provisions of state law. All administrative staff shall be subordinate to the mayor.
(2) To delegate the performance of administrative duties to such municipal officers or employees as he deems necessary and advisable.
* * * * * * * * *
(9) To have any other power or perform any other duty as may be necessary or proper for the administration of municipal affairs not denied by law.
The mayor is the chief municipal administrative officer and is given the authority to supervise and direct the day to day operation of all municipal departments and agencies. This administrative authority includes the authority to delegate and direct the performance of duties and job related tasks and to determine and establish day to day operational procedures such as work schedules. Thus, it is the mayor who possesses these administrative powers and authority and not the members of the municipal board of aldermen.
It is hoped that this opinion has been of some assistance to you. If we may be of any further assistance, please feel free to contact us.
Sincerely,
WILLIAM J. GUSTE, JR Attorney General
BY: __________________________ CASSANDRA A. SIMMS Assistant Attorney General
OPINION NUMBER 03-0360
October 20, 2003
90-A-1 PUBLIC FUNDS CONTRACTS Art. VII, § 10.8; La.R.S. 39:98.1, et seq
Legislation is required to address situation where non-eligible schools have been appropriated monies from the Education Excellence Fund.
Mr. Cecil J. Picard State Superintendent of Education Department of Education P. O. Box 94064 Baton Rouge, LA 70804
Dear Superintendent Picard:
You requested the opinion of this office concerning the Education Excellence Fund (the "Fund"), specifically the property disposition of funds appropriated from the Fund to an entity that dissolves prior to distribution or otherwise becomes ineligible to receive the funding.
La. Const. Art. VII, Sec. 10.8(C)( 3)(i) provides as follows:
La.R.S. 39:98.3.C.(9) contains an identical provision.
"The treasurer shall maintain within the state treasury a record of the amounts appropriated and credited for each entity through appropriations authorized in this Subparagraph and which remain in the state treasury. Notwithstanding any other provisions of this constitution to the contrary, such amounts, and investment earnings attributable to such amounts, shall remain to the credit of each recipient entity at the close of each fiscal year." (Emphasis added)
As you noted, charters to operate an independent public school are granted by the local public school systems and the Board of Elementary and Secondary Education ("BESE") to nonprofit corporations. You advised that amounts have been appropriated to certain charter schools and approved private schools where either the charter has subsequently been revoked or the charter has been voluntarily surrendered. In another case, a nonprofit corporation holding a charter was not funded by the legislature for the 2003-2004 fiscal year. In other cases, certain approved private schools that had amounts appropriated to it in the past, no longer provide educational services to children. Other private schools are still in operation but have lost their approval.
The State Constitution must be interpreted by the same rules as are other laws and, therefore, must be read to accord equal dignity to all its provisions, giving effect to the intent of both the framers and the people who adopted it, thereby avoiding absurd and impractical results. It is a general principle of judicial interpretation that, unlike the federal constitution, a state constitution's provisions are not grants of power but instead are limitations on the otherwise plenary power of the people of a state exercised through its legislature. In its exercise of the entire legislative power of the state, the legislature may enact any legislation that the state constitution does not prohibit. Board of Directors of the Louisiana Recovery District v. All Taxpayers, et al., 529 So.2d 384 (La. 1988).
General rules of statutory interpretation include the following provisions of our Civil Code and Revised Statutes:
C. C. art. 9: "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature."
C. C. art. 10: "When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law."
C. C. art. 11: "The words of a law must be given their generally prevailing meaning. . ."
C. C. art. 12: "When the words of a law are ambiguous, their meaning must be sought be examining the context in which they occur and the text of the law as a whole."
C. C. art. 13: "Laws on the same subject matter must be interpreted in reference to each other."
La.R.S. 1:3: "Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning. . ."
La.R.S. 1:4: "When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit."
In Op.Atty.Gen. 03-0185 we reviewed questions similar to those poised in your request. As we noted in that prior opinion, generally funds within the state treasury are state owned funds. There are some limited exceptions, none of which we found pertinent to the Fund.
This office found that State funds which are appropriated from the State treasury remain State funds until the monies are physically withdrawn from the State treasury. This office also observed that an entity to whom an appropriation is made obtains an inchoate or incomplete interest in the appropriated monies in the state treasury. It is not until the qualifications, conditions, limitations or restrictions on the expenditure of funds are met, that the money can be withdrawn from the state treasury and expended. Ownership vests in the entity to which the appropriation was made upon the withdrawal or expenditure of the funds, not upon the effective date of the appropriation.
With the exception of the enumerated schools in Sec. 10.8(C)(3)(b), appropriations from the Fund are not made directly to the recipient school and school systems, but rather the appropriations are made to the superintendent of education. The recipient school or school systems must prepare and submit to the State Department of Education a prioritized plan for expenditure of funds it expects to receive in the coming year. Distribution of the funds may occur only after the plan has received both legislative and departmental approval as provided by law.
La. Const. Art. VII, Sec. 10.8(C)( 3)(g).
Until the funds are distributed to the schools and school systems, which can only occur after approval of the plan by the department and the legislature, the schools and school systems only have an inchoate or incomplete interest in the appropriated monies in the state treasury. It is not until the qualifications, conditions, limitations or restrictions on the expenditure of funds are met, namely, the preparation and submission of the plan by the recipient entity and the legislative and departmental approvals, that ownership transfers.
We stated in our prior opinion that while ownership of the funds remains in the State until the money is withdrawn:
" the monies appropriated for the schools and the school systems cannot be diverted for any other purpose nor to any other entity. The allocations to the various recipient entities must occur as described in the Constitution. Even though the schools and the school systems do not have full ownership of the funds available for appropriation from the Education Excellence Fund while those monies are in the state treasury, the disposition of the funds must follow the allocations set forth in the Constitution and the funds should be held as though in trust for the recipient entities. . ." (Emphasis added)
We believe that the foregoing is correct in the context of the previous opinion. However, we did not consider the situation where a school is no longer eligible to receive appropriations from the Fund, such as if the charter has been revoked or voluntarily surrendered or if the school no longer provides educational services to children. Under a strict, literal reading of the Constitution, monies attributable to the schools which become ineligible after the funds are appropriated but prior to their withdrawal from the State treasury would remain to the credit of such schools and earn investment income for all eternity. Under such an interpretation, those funds could never be used by anyone and the investment income could not be directed to other eligible schools and school districts. We believe that such is an absurd result which is contrary to the purpose of the Constitutional directive of using the funds to support excellence in educational practice.
Sec. 10.8(C)(3)(g).
We suggest that the only solution to this conundrum is through action of the legislature. There is no question but the problem can be corrected through a constitutional amendment. It is also possible that the legislature could resolve the problem through a statute. We recognize that the legislature cannot amend the Constitution through a statute; however, the legislature may enact any legislation that the state constitution does not prohibit. In Polk v. Edwards , the Supreme Court held that if there is any doubt as to the constitutionality of a statute, the issue must be resolved in favor of its constitutionality unless the opponent clearly establishes that the constitutional aim was to deny the legislature the power to enact such a statute. We suggest that a possible solution would be for the legislature to define "recipient entity" to only include those institutions which have a charter or the requisite approval.
Jacobs v. City of Bunkie, 1998-2510 (La. 5/18/99), 737 So.2d 14; Strata v. Williams, 94-1150 (La.App. 4 Cir. 11/30/94), 646 So.2d 522.
626 So.2d 1128 (La. 1993).
Trusting that this adequately responds to your request, we remain
Yours very truly,
RICHARD P. IEYOUB Attorney General
BY: ________________________________ MARTHA S. HESS Assistant Attorney General
RPI/MSH
DATE RECEIVED:
DATE RELEASED: October 20, 2003