Can a retiring Florida sheriff be paid for accrued vacation and sick leave?

Plain-English summary

The General Counsel of the Sarasota County Sheriff's Office asked whether two compensation statutes, sections 30.48 and 145.071, stopped the office from paying the Sheriff for his accumulated vacation, compensatory, and sick leave when he retired. Senior Assistant Attorney General Gerry Hammond responded for Attorney General McCollum in an informal letter.

The short answer was that those two statutes do not bar the payment. Sections 30.48 and 145.071 deal with what county sheriffs are paid, but neither addresses whether a sheriff can be paid for previously accrued leave. The real constraint is section 215.425, which prohibits retroactive compensation, lump-sum allowances, and other pay not provided by law or contract when the services were performed. The key word is "provided": if an existing leave policy authorizes the payout, it is not prohibited extra compensation. The office pointed to a 1993 opinion holding that, without a formal policy, paying a chief deputy for accrued leave at termination could be illegal, and to an informal opinion to a Monroe County sheriff concluding that a sheriff does not lose leave benefits earned during his earlier service as a deputy just because he later became sheriff. Because the Sarasota office had a leave policy providing for pay-outs in specific situations, section 215.425 would not appear to prohibit the payment. The letter stressed it was the writer's informal view, not a formal Attorney General Opinion.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Section 215.425 is the anchor. It forbids paying retroactive compensation, lump-sum allowances, or other compensation not fixed by law or contract when the services were rendered, unless a statute specifically authorizes it. "Extra compensation" generally means a payment for services over and above what was set when the work was done. The statute's footnoted examples, sections 125.01(1)(bb) and 166.021(7), let counties and municipalities set up bonus programs for outstanding employees, illustrating that authorized programs fall outside the prohibition.

Applying that, the office reasoned that an existing leave-payout policy is the kind of authorization that takes a payment out of section 215.425's ban. The 1993 opinion (AGO 93-14) had warned that paying a chief deputy for accrued leave without a formal policy could be unauthorized and illegal, which is the flip side of the same rule. The informal opinion to Sheriff Roth recognized that service as sheriff is not itself employment for which sick leave accrues, but concluded that becoming sheriff does not strip away leave benefits earned earlier as a deputy. The office noted it does not usually comment on local administrative policies, but observed that Sarasota's office did have a leave policy providing for pay-outs.

Common questions

Q: Can a retiring Florida sheriff be paid for unused leave?
A: Per this opinion, sections 30.48 and 145.071 do not bar it, and section 215.425 does not prohibit it where an existing office policy authorizes the pay-out.

Q: What makes a leave payout legal versus illegal extra compensation?
A: Whether it is authorized in advance. If a law, contract, or formal policy provides for the payout, it is not prohibited extra compensation under section 215.425. Without such authorization, a 1993 opinion warned it could be illegal.

Q: Does becoming sheriff wipe out leave earned as a deputy?
A: The office's view was no. A prior informal opinion concluded that later service as sheriff does not divest a person of leave benefits earned during earlier employment as a deputy.

Q: Is this a binding Attorney General Opinion?
A: No. The letter states it is an informal opinion reflecting the writer's views, not a formal Attorney General Opinion.

Citations and references

Statutes:

• s. 30.48, s. 145.071, Fla. Stat. (sheriff compensation)
• s. 215.425, Fla. Stat. (prohibition on extra compensation)
• s. 125.01(1)(bb), s. 166.021(7), Fla. Stat. (authorized bonus/extra compensation programs)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/leave-payments-sheriffs
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8235

Original opinion text

Major Kurt A. Hoffman

General Counsel

Sarasota County Sheriff's Office

Post Office Box 4115

Sarasota, Florida 34230-4115

Dear Major Hoffman:

You have asked for this office's assistance in determining whether sections 30.48 and 145.071, Florida Statutes, preclude payment of accumulated vacation, compensatory, and sick leave to the Sarasota County Sheriff upon his retirement. Attorney General McCollum has asked me to respond to your letter.

Sections 30.48 and 145.071, Florida Statutes, both deal with compensation for county sheriffs; neither speaks to the question of whether additional compensation may be paid to the sheriff for leave accumulated prior to the sheriff's election. Payment of retroactive compensation, lump sum allowances, or other forms of compensation not provided by law or contract is prohibited by section 215.425, Florida Statutes, unless otherwise specifically authorized by state statute.[1] Extra compensation generally refers to an additional payment for services performed or compensation over and above that fixed by contract or by law when the services are performed.

In Attorney General Opinion 93-14, this office was asked whether a sheriff could lawfully authorize the payment of sick and annual leave to the chief deputy upon the termination of the chief deputy's employment with the sheriff's office. Based in large part on the principles set forth above, this office concluded that, in the absence of a formal personnel policy adopted by the sheriff establishing the right of a chief deputy sheriff to payment for sick and annual leave upon termination of employment, such a payment was unauthorized and could be illegal. I am enclosing a copy of this opinion for your review.

Subsequently, in an informal opinion to Sheriff Roth of Monroe County, this office commented on the question of whether the sheriff himself was entitled to payment for accrued sick leave under the sheriff's office personnel policy. As noted in that opinion, the sheriff's department had adopted a policy for the payment of accrued sick leave to employees. While recognizing that service as a sheriff does not qualify as employment for which sick leave may be accrued, the informal opinion concludes that the sheriff's subsequent service as sheriff would not divest him of the benefits earned during his previous employment as a deputy. I am also enclosing a copy of this informal opinion.

While this office does not generally comment on the administrative policies of local governments, it would appear that the Sarasota County Sheriff's Office does have a leave policy and that it provides for a pay-out of accrued leave under specific situations. Thus, the provisions of section 215.425, Florida Statutes, would not appear to prohibit the payment of retroactive compensation, lump sum allowances, or other forms of compensation. Further, it appears that this office has taken the position that entitlement to payment for accrued leave is not divested by subsequent service as a sheriff.

I trust that these informal comments will be helpful to you in advising your client. This informal Attorney General's Opinion was prepared by the Department of Legal Affairs in an effort to be of assistance. The opinions expressed herein are those of the writer and do not constitute a formal Attorney General's Opinion.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/tsh

Enclosure: Op. Att'y Gen. Fla. 93-14 (1993) and

    Inf. Op. to Roth, dated June 5, 1997

[1] See, e.g., ss. 125.01(1)(bb) and 166.021(7), Fla. Stat., which authorize the governing body of a county or a municipality to provide for an extra compensation program, including a lump-sum bonus payment program, to reward outstanding employees whose performance exceeds standards, provided that bonus payment is not included in the employee's base rate of pay and is not carried forward in subsequent years.