Can Idaho's governor, attorney general, or other elected executive officers cash out unused vacation leave when their term ends?

Subject

Opinion 86-15: Elected officials of state executive branch may not receive cash compensation for unused vacation leave at end of their term.

Plain-English summary

State Auditor Joe Williams asked whether Idaho's elected executive officers, the governor, secretary of state, state auditor, state treasurer, attorney general, and superintendent of public instruction, were entitled to cash out unused vacation leave when leaving office. Attorney General Jim Jones concluded they were not. Idaho Constitution art. 4, § 19, governs their compensation and provides that the per-annum salary "shall be in full for all services" rendered in any official capacity during their term. Idaho Code § 59-501 repeats the same "in full" language. Together, those provisions mean an elected executive officer could not receive compensation beyond the annual salary established by § 59-501, including a cash payout of accrued vacation.

The opinion drew a fundamental distinction between elected officers and ordinary employees. Classified state employees and "eligible nonclassified" officers accrue vacation under Idaho Code §§ 67-5334, 67-5335 and 67-5337 and 59-1606, and they are entitled to cash out unused vacation when they leave state service. That right rests on a contractual, employment-based relationship. Elected executive officers are not employees; salary is "an incident to the office," meaning it attaches because of the right to hold the office, not because of any employment contract. Following the Idaho Supreme Court's reasoning in Buckalew v. City of Grangeville and State ex rel. Wright v. Gossett, the AG held that no payment beyond the constitutional salary, regardless of how it is labeled, is permitted.

Currency note

This opinion was issued in 1986. 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.

The salary figures and code section numbers discussed below reflect the law the opinion addressed in 1986.

What the opinion meant for state government in 1986

For the state auditor's office, the opinion concluded that the elected executive officers listed in article 4, § 19 could not receive a cash payment for unused vacation leave at the end of their terms.

For the elected officers themselves, the opinion treated their compensation as the fixed annual salary established under article 4, § 19 and § 59-501. It said sickness or vacation did not affect their right to that salary, and unused vacation time did not produce an additional payment when the term ended.

For eligible nonclassified officers and employees in the executive and legislative departments, the opinion quoted § 59-1606, which tied their vacation accrual and use to the rules for classified employees. It said eligible state officers and employees received pay for unused vacation on leaving state employment; the conclusion about elected executive officers was different.

Common questions

Did this rule apply to all state officials, or only to elected ones?
Only the elected executive officers named in art. 4, § 19. Classified employees and nonclassified officers below the elected level continued to accrue vacation under §§ 67-5334, 67-5335 and 67-5337 and 59-1606, and remained entitled to cash out unused vacation when they left state service.

Why was an elected officer's situation different from an employee's?
Because the legal basis for compensation is different. An employee has a contract; the salary is consideration for services. An elected officer holds a public office; the salary is an "incident" of the office, attaching as long as the person is entitled to hold it. The AG drew this distinction from the Idaho Supreme Court's Buckalew decision, which described public office compensation as "a mere incident thereof and belonging to the officer by virtue of his right to the office and not by reason of a contractual relationship."

Why did the AG say a statute could not provide extra pay to these officers?
Article 4, § 19 said the stated salary was "in full for all services" during the term. The opinion relied on State ex rel. Wright v. Gossett, which invalidated a 1937 statute providing additional pay to the lieutenant governor and Speaker for work after the legislative session.

Could an elected officer take vacation during the term?
The opinion did not decide vacation scheduling. It said an elected executive officer's right to the fixed salary was unaffected by sickness or vacation, and unused vacation time could not be cashed out at the end of the term.

Background and statutory framework

Idaho's leave rules in 1986 distinguished three groups. Classified employees, governed by §§ 67-5334, 67-5335 and 67-5337, accrued vacation and were entitled to be paid for unused time on separation. "Eligible" nonclassified officers and employees, governed by § 59-1606, accrued vacation under the same rules. The opinion treated elected executive officers differently because their compensation was set by art. 4, § 19, of the Constitution and by § 59-501.

Article 4, § 19, originally fixed specific dollar amounts for the elected executive offices ($3,000 per annum for the governor, etc.) but expressly authorized the legislature to "diminish or increase the compensation," with the proviso that no such change could affect the salary of officers then in office during their term. Under that authority, the legislature had increased salaries through § 59-501. Both the constitutional and statutory provisions repeated identical "in full" language about compensation.

The "incident of office" doctrine, drawn from Buckalew v. City of Grangeville, 100 Idaho 460 (1979), treats the salary of a public officer as flowing from the right to hold the office rather than from any employer-employee contract. Buckalew applied that doctrine to a city police chief who held office for a fixed term at a fixed salary, ruling that he was entitled to his salary even after wrongful removal and that earnings from other employment in the interim could not be offset against his claim. The opinion extended the same reasoning to state elected executive officers.

State ex rel. Wright v. Gossett, 62 Idaho 521 (1941), enforced the "in full" language by striking down a 1937 statute authorizing the lieutenant governor and Speaker to receive additional pay for legislative duties performed after session adjournment. The court treated the constitutional provision as "clear and explicit" and refused to let the legislature route around it.

Citations

• Idaho Constitution, art. 4, § 19
• Idaho Constitution, art. 3, § 23
• Idaho Code § 59-501
• Idaho Code § 59-1606
• Idaho Code § 67-5334
• Idaho Code § 67-5335
• Idaho Code § 67-5337
• State ex rel. Wright v. Gossett, 62 Idaho 521, 113 P.2d 415 (1941)
• Buckalew v. City of Grangeville, 100 Idaho 460, 600 P.2d 136 (1979)
• 150 A.L.R. 100, 103

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP86-15.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

JIM JONES
ATTORNEY GENERAL

BOISE 83720

TELEPHONE
(208) 334-2400

ATTORNEY GENERAL OPINION NO. 86-15

The Honorable Joe R. Williams
State Auditor
State of Idaho
STATEHOUSE MAIL

Per Request for Attorney General's Opinion

QUESTION PRESENTED:

Are elected officials of the executive branch of state government entitled to receive cash compensation for unused vacation leave upon leaving office at the end of their term?

CONCLUSION:

Elected officials of the executive branch of state government may not receive cash compensation for unused vacation leave at the end of their term of office.

ANALYSIS:

Upon separation from state service, "classified" state employees are entitled to be paid their salary for the period of their unused vacation time pursuant to Idaho Code §§ 67-5335 and 67-5337. Idaho Code § 59-1606 provides in pertinent part with respect to "nonclassified" officers and employees:

Eligible nonclassified officers and employees in the executive department and in the legislative department shall accrue vacation leave and take vacation leave at the same rate and under the same conditions as is provided in sections 67-5334 and 67-5335, Idaho Code, for classified officers and employees.

Thus, state employees and "eligible" state officers are entitled to be paid their salary for the period of their unused vacation leave upon leaving state employment. However, this general rule does not apply to the state's elected executive offices. Idaho Constitution, art. 4, § 19 provides in pertinent part:

The governor, secretary of state, state auditor, state treasurer, attorney general, and superintendent of public instruction shall, monthly as due, during their continuance in office, receive for their services compensation, which, for the term next ensuing after the adoption of this constitution, is fixed as follows: Governor, three thousand Dollars ($3,000) per annum; . . .

The compensation enumerated shall be in full for all services by said officers respectively, rendered in any official capacity or employment whatever during their respective terms of office.

The legislature may, by law, diminish or increase the compensation of any or all of the officers named in this section, but no such diminution or increase shall affect the salaries of the officers then in office during their term; . . . (Emphasis added.)

Pursuant to Idaho Code § 59-501, the legislature has increased the per annum salary of the elected officials of the executive branch, as permitted by Idaho Constitution, art. 4, § 19. Idaho Code § 59-501 then provides in pertinent part:

Such compensation . . . shall be in full for all services by said officers respectively, rendered in any official capacity or employment whatever during their respective terms of office; . . .

Thus, both the constitution and statute provide that the enumerated per annum compensation of the elected officers in the executive branch shall be in full for all services rendered in any official capacity during their terms of office.

The provisions of Idaho Constitution, art. 4, § 19, were considered by the Idaho Supreme Court in State ex rel. Wright v. Gossett, 62 Idaho 521, 113 P.2d 415 (1941). Therein, the court considered a statute passed by the legislature in 1937. The statute authorized and directed the lieutenant governor and the speaker of the house of representatives to remain in Boise to complete legislative business such as preparation of journals, enrolling bills, and indexing the journals and bills. The bill appropriated additional salary for this work. The Idaho Supreme Court held the statute to be unconstitutional. As to the lieutenant governor, it violated Idaho Constitution, art. 4, § 19. As to the speaker of the house of representatives, the bill violated Idaho Constitution, art. 3, § 23. The court held:

And as above related, art. 4, § 19, provides the lieutenant governor shall receive the same per diem as may be provided by law for the speaker of the house of representatives "to be allowed only during the sessions of the Legislature." To make it more certain and emphatic, if such be possible, this constitutional provision further provides that "The compensations enumerated shall be in full for all services by said officers respectively, rendered in any official capacity or employment whatever during their respective terms of office." It is well settled that in construing the Constitution words are to be given their ordinary meaning. The constitutional provisions above referred to are clear and explicit and that portion of chap. 167, 1937 Sess. Laws, relating to further compensation for the speaker of the house and president of the senate for services performed after the adjournment of the session is in direct conflict with the Constitution. (Emphasis in original)

62 Idaho at 529.

It is thus clear that the elected officials of the executive branch enumerated in Idaho Constitution, art. 4, § 19, may not be paid more for their services than their per annum salary established by Idaho Code § 59-501.

The basis for the right to compensation for elected executive officers differs fundamentally from that of other employees. Most employees are contractually entitled to compensation for services rendered. In the case of the executive officers elected for a fixed term, salary is an incident to the office. If entitled to hold the office, the right to salary follows.

The Idaho Supreme Court considered this fundamental difference in Buckalew v. City of Grangeville, 100 Idaho 460, 600 P.2d 136 (1979). That case involved a city police chief who held office for a fixed term at a fixed salary and who was improperly removed from office. The police chief sued for his salary and prevailed. The city sought to offset, from the back salary due, the amount the police chief had earned in the interim from other employment. In evaluating the salary rights of the police chief, the Idaho Supreme Court quoted with approval from a Montana case as follows:

The city is not entitled to have credited upon plaintiff's claim for salary the amount he earned in other employment during the time he was wrongfully excluded from his office. His claim does not rest upon contract. He was not an employee, but an officer. The salary is an incident to the office, and, if entitled to the office, his right to the salary follows. (Emphasis added.)

100 Idaho at 462.

The court went on to quote with approval from 150 A.L.R. 100, 103, in pertinent part as follows:

The reason advanced for excepting public officers from the application of the general rule as to mitigation of damages is that, according to the general conception of office, no contract, in the usual sense of the word, exists between a public officer and the government, the compensation for the office being a mere incident thereof and belonging to the officer by virtue of his right to the office and not by reason of a contractual relationship. (Emphasis added.)

100 Idaho at 462

The foregoing statements are equally applicable to elected officials of the executive branch of state government. Like the police chief, they receive a fixed salary for a fixed term of office. Moreover, as noted previously, Idaho Constitution, art. 4, § 19, is quite specific in providing that the officers shall receive "during their continuance in office" the enumerated compensation, and no "diminution or increase shall affect the salaries of officers then in office during their term."

In other words, state elected officials of the executive branch receive fixed compensation so long as they hold their office. Their right to compensation is not affected by sickness or vacation. It is strictly a right incident to their holding office. By the same token, they can receive no more than the compensation fixed by Idaho Constitution, art. 4, § 19, and Idaho Code § 59-501. At the end of their term, they are not entitled to be paid their salary for the period of their unused vacation time.

AUTHORITIES CONSIDERED:

Idaho Const., art. 4, § 19
Idaho Const., art. 3, § 23
Idaho Code § 59-501
Idaho Code § 59-1606
Idaho Code § 67-5334
Idaho Code § 67-5335
Idaho Code § 67-5337
State ex rel. Wright v. Gossett, 62 Idaho 521, 113 P.2d 415 (1941)
Buckalew v. City of Grangeville, 100 Idaho 460, 600 P.2d 136 (1979)
150 A.L.R., 100, 103

DATED this 17th day of December, 1986.

ATTORNEY GENERAL
State of Idaho

ANALYSIS BY:
DAVID G. HIGH
Deputy Attorney General
Chief, Business Affairs and State Finance Division

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