Opinion Number

Dear Ms. Wall:

This office is in receipt of your request for an opinion of the Attorney General in regard to a commissioner's appointment and service on the Pontchartrain Levee Board District.

You indicate in 1997 Mr. Baptiste was appointed by the Governor to act as commissioner on the levee board and confirmed by the Senate, but later that year he was replaced by Mr. Kane who resigned in 2000. On June 15, 2000 Governor Foster appointed Mr. Baptiste to return and replace Mr. Kane. However, when the appointments for the levee board were confirmed in June of 2001 Mr. Baptiste's name was not confirmed by the Senate. To the levee district's belief Mr. Baptiste had no actual knowledge of the failure of his confirmation, but in November of 2001 when the levee district office received documentation regarding status and seat information of the board and commissioners, it was noted that Mr. Baptiste's name was not listed. The levee district office forwarded by fax the failure of the listing to the Louisiana State Senate, attaching a copy of the Governor's second appointment of Mr. Baptiste for the vacant seat of Mr. Kane.

After this notice to the Senate, the levee district was under the assumption that the appointment of Mr. Batiste was valid, and that his name not being listed for senate confirmation was an oversight. Accordingly, Mr. Baptiste continued to serve and was paid for his services which included his salary of $8,442.06 and per diem and expenses of $314.44.

In May of 2004, it was brought to the attention of the Pontchartrain Levee District that his name was not listed under Senate confirmations in 2001, and Mr. Baptiste voluntarily discontinued his services.

You point out that during the entire tenure of Mr. Baptiste acting as commissioner, no action taken pursuant to a vote was affected by one vote, and therefore no action was dependent upon Mr. Baptiste's vote in his service as commissioner.

You ask whether or not Mr. Baptiste's service as commissioner was indeed valid under R.S. 38:304 and any other applicable Louisiana law, and if not, what action if any should be taken regarding the payment of funds to Mr. Baptiste under his good faith service.

In Atty. Gen. Op. 90-136 this office noted that Atty. Gen. Op. 88-344 had held that the City could not pay retroactive compensation to City employees for services previously compensated, but found an additional question was being raised in the instant request as to whether the City was obligated to seek reimbursement of those payments when both the City and the employees were acting in good faith in making and receiving the payments.

To this question this office concluded, "It is the opinion of this office that the City of Harahan is not obligated to seek reimbursement, but may do so at its discretion." It was noted, "Since the payment was made through mistake, the Mayor and Board of Alderman of the City of Harahan must decide whether to reclaim what has been paid."

In Atty. Gen. Op. 03-444 overpayment of state employees was involved, and this office was asked if a state agency would be in violation of Louisiana Law if no recoupment efforts were made. In response to this question this office reasoned "overpayment, a payment for something the employee did not earn" is prohibited by the Constitution and the agency must exercise every reasonable means to recover overpayment, and reasonable means must be determined on a case-by-case basis and on sound practices and principles.

Additionally, this office observed in Atty. Gen. Op. 89-408 that appointments by the Governor must be confirmed by the Senate before the end of the regular session, but an unconfirmed Commissioner may legally serve on an interim basis until the end of the regular session. It was stated, "The legal efficacy of the interim appointment dissolves at the end of the regular session if the appointment is not confirmed by the Senate, and the appointee may not be reappointed by the Governor during the recess of the legislature."

The statement that an "unconfirmed Commissioner may legally serve on an interim basis" demonstrates that this service by Mr. Baptiste was compensable, and such payment may be distinguished from seeking recoupment for "overpayments".

Moreover, we do not believe the board is mandated to seek reimbursement after the Senate's session inasmuch as the payments were made through a mistake of both the board and the appointee, but more importantly, the work was performed as Mr. Baptiste continued to fill the position, and therefore the payments were earned because he was a De Facto Commissioner.

We hope this sufficiently answers your inquiry, but if we can be of further assistance, do not hesitate to contact us.

Very truly yours,

CHARLES C. FOTI, JR. ATTORNEY GENERAL

By: ____________________________

BARBARA B. RUTLEDGE Assistant Attorney General

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Dear Mr. Grace:

In Attorney General's Opinion Number 88-344 this office held that the City of Harahan cannot pay retroactive compensation to city employees for services previously compensated by the city. You have raised an additional question: "Is the city obligated to seek reimbursement of those paYments, when both the city and the employees were acting in the good faith in making and receiving the payments?" It is the opinion of this office that the city of Harahan is not obligated to seek reimbursement, but may do so at its discretion.

The Louisiana Civil Code makes a provisions for the payment of a thing not due. Civil Code Article 2301 states:

"He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.

Civil Code Article 2302 states:

"He who has paid through mistake, believing himself a debtor, may reclaim what he has paid."

Civil Code Article 2303 states:

"To acquire this right, it is necessary that the thing paid be not due in any manner, either civilly or naturally. A natural obligation to pay will be sufficient to prevent the recovery."

Civil Code Article 2304 states:

"A thing not due is that which is paid on the supposition of an obligation which did not exist, or from which a person has been released."

The difficult question in this case is whether the payments at issue were in furtherance of a natural obligation. Civil Code Article 1760 states:

"A natural obligation arises from circumstances in which the law implies a particular moral duty to render a performance."

Civil Code Article 1761 provides:

"A natural obligation is not enforceable bY judicial action. Nevertheless, whatever has been freely performed in compliance with a natural obligation may not be reclaimed."

In the present case the city of Harahan paid additional compensation to city employees for work for which the emploYees received previous compensation. These circumstances do not seem to imply a particular moral duty on the part of the city to pay additional compensation. The apparent lack of a moral duty is supported by Civil Code Article 1966 which states:

"An obligation cannot exist without a lawful cause."

Civil Code Article 1968 states:

"the cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy."

As expressed in Opinion Number 88-344 the payment of retroactive compensation for work on which compensation has already been received violates Article 7 § 14 of the Louisiana Constitution. SinCe there is no lawful Cause for suCh payments it follows that the City had no legal or natural obligation to make such paynents. Without a legal or natural obligation the payment by the city was payment of a thing not due.

However the law does not require the city to claim reimbursement. Under Civil Code Article 2302 the City has the discretion as to whether to reclaim what has been paid. The City mistakenly believed that the money was due the employees. Since the payment was made through mistake the Mayor and Board of Alderman of the city of Harahan must decide whether to reclaim what has been paid.

Sincerely,

WILLIAM J. GUSTE, JR. Attorney General

BY ______________________ J. Marvin Montgomery Assistant Attorney General

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Dear Mr. Simpson:

A joint request for an Attorney General's opinion has been made by you and Harahan Police Chief, John Doyle. The issue is whether the Harahan Board of Aldermen may, in 1988, compensate three (3) city employees for work performed by the employees in 1987. It is the opinion of this office that retroactive compensation to city employees for services previously compensated by the city is prohibited by Article 7, Sec. 14 of the 1974 LOUISIANA Constitution.

According to the facts presented to this office three (3) city employees worked 30 hours a week prior to 1987. In 1987, a new mayor increased the work hours of these employees to 35 hours per week. These employees received no increase in salary for the additional work hours. Two (2) other city employees hired in 1987 by the new mayor were also required to work 35 hours per week at the compensation rate paid prior to 1987 for 30 hours per week. In 1988 the mayor resigned. His successor reduced the affected employees' work week to 30 hours per week. There was no change in the compensation. Later, in 1988 the Harahan Board of Aldermen voted to authorize payment of additional compensation to pay for the extra five hours per week worked by the employees.

The additional compensation was determined by multiplying the number of additional hours by a rate per hour. Article 7, Sec. 14 provides in part:

"(A) Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private."

The legality of retroactive compensation to public employees was reviewed by the courts in McElveen vs. Callahan, 309 So.2d 379 (C.A.3, 1975); -Writ denied 313 So.2d 602 (LA., 1975). The McElveen v. Callahan case involved retroactive payment by a local marshal to three (3) of his employees. The compensation was given for performing extra duties and working overtime. The Court of Appeals, citing Opinions of the Attorney General, held that:

"The payment of bonuses to public employees is illegal, whether paid directly as such or disguised as payment for extra duties or overtime.

Payments to be legal must be in the form of salary increases for the future, not extra compensation for past services rendered . . ."

Public officials have the discretion to set the number of hours per week that public employees must work. Absent any agreement with the employees no overtime or extra compensation must be paid if the number of work hours per week do not exceed 40 hours per week. In the present situation, the three (3) city employees were required to work 35 hours a week in 1987, rather than 30 hours per week for the same compensation. The decision of the previous mayor to increase the number of work hours without increasing compensation was one he was authorized to make. Since the employees have received compensation for the hours they worked in 1987 they cannot receive any additional compensation.

This office has consistently ruled that retroactive pay for services previously rendered and compensated violates Art. 7, Sect. 14 of the Constitution. See Op.Atty.Gen., #-80-806 and #-86-639, copies of which are attached to this opinion. In conclusion, the Harahan Board of Aldermen is prohibited by the Constitution from giving extra compensation to the three (3) city employees for work they were compensated for by their 1987 salary.

Sincerely,

William J. Guste, Jr. Attorney General

By: J. Marvin Montgomery Assistant Attorney General La. Atty. Gen. Op. No. 88-344

Dear Mr. Leon:

You have propounded the following questions for which you have requested an opinion from the Attorney General:

1. Whether the present President of the Board of Commissioners for the Red River, Atchafalaya and Bayou Bouef Levee District, who was appointed a Commissioner by Governor Roemer but was not confirmed by the Senate in its 1989 regular session, may continue to serve;

2. Whether a Commissioner may continue to serve until either he is reappointed or a new Commissioner is appointed by the Governor;

3. If the Presidency of the Board should become vacant, how should a successor be chosen by the Board?

Appointments by the Governor must be confirmed by the Senate before the end of the regular session. La. Const. Art. IV, Sec. 5H(1) (1974).

An unconfirmed Commissioner may legally serve on an interim basis until the end of the regular session, unless confirmed by the Senate. La. Const. Art. IV, Sec. H(3) (1974).

The legal efficacy of the interim appointment dissolves at the end of the regular session, if the appointment is not confirmed by the Senate, and the appointee may not be reappointed by the Governor during any recess of the legislature. La. Const. Art. IV, Sec. H(4) (1974).

All public officers continue to serve in their office, unless impeached or suspended, until their successor is inducted. LSA-R.S. 42:2.

All commissioners of the Red River, Atchafalaya and Bayou Bouef Levee District serve at the pleasure of the Governor making the original appointment. LSA-R.S. 38:304B.

In the case of a vacancy in the office of President, the Levee Board may elect a successor by routine election. LSA-R.S.38:304C.

In accordance with these principles of laws, the failure of the Senate to confirm Mr. Leon's appointment as Commissioner terminates his appointment. He ceases to be a member of the Board of Commissioners as of the date of adjournment of the regular session of the Senate. This legal event collaterally also causes the Presidency of the Board to become vacant, a vacancy which may be filled by election. Pending the election, the Vice-President may serve as the acting President. R.S. 38:304C. Under LSA-R.S.42:2, Mr. Leon's predecessor in office resumes office as Commissioner until a new interim commissioner is appointed by the Governor.

Mr. Buford Smith, appointed by a previous Governor, may continue to serve as Commissioner until the Governor appoints a successor or, which appointment is confirmed by the Senate, and the commission to office is issued by the Governor.

Trusting this to be of sufficient information, I am

Sincerely,

WILLIAM J. GUSTE, JR. Attorney General

BY: _________________________ CHARLES J. YEAGER Assistant Attorney General

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Dear Mr. LeBlanc:

The Division of Administration is responsible for the bi-weekly payment of approximately 50,000 state employees. There are times when an employee is overpaid in error. If the employee is employed by the state at the time of the overpayment, the state is able to recoup the payment from the following pay period. The recoupment of overpayments is more difficult in those instances when the employee is no longer employed by the state. Although many employees, upon receiving notification from the state of the overpayment reimburse the state; many do not. The Division of Administration questions if a state agency would be in violation of Louisiana Law if no recoupment efforts are made for minor overpayments.

In short, we believe that a public agency would be in violation of the Louisiana Constitution if no recoupment efforts are made. Article 7, Section 14 of the Louisiana Constitution clearly prohibits the donation of public funds. Thus the state or any of its political subdivisions may not loan, pledge or donate its funds or anything of value to or for any person when it is under no obligation to do so.1 We have interpreted legal obligation to mean that the expenditure of funds be sanctioned, authorized by law, or in the discharge of a legal duty.2
Public employees may only be compensated for their labor. They are also entitled to all earned benefits. Bonuses or any other type of gratuitous, unearned payments are prohibited.

Clearly, an overpayment, a payment for something that the employee did not earn, is a bonus and is prohibited by Article 7, Section14 of the Louisiana Constitution. It stands to reason, therefore, that the agency must exercise every reasonable means to recover the overpayment. Reasonable means must be determined by the agency on a case-by-case basis and on sound business practices and principles.

We trust that this adequately responds to your request. If you have any questions or comments, please do not hesitate to contact our office.

Yours very truly,

CHARLES C. FOTI, JR. Attorney General

BY: ________________________________ TINA VICARI GRANT Assistant Attorney General

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1 City of Port Allen v. Louisiana Municipal Risk Agency,439 So.2d 399 (La. 1983).

2 Attorney General Opinion Nos. 02-0162 and 00-14.