Could a Louisiana college employee receive a cash payout for unused annual leave after transferring to another state university system?

Plain-English summary

An unclassified Louisiana Community and Technical College System (LCTCS) employee transferred to another higher education system without a break in state service. The receiving system accepted transferred sick leave but not annual leave. In Opinion 03-0236, the AG said the employee could not demand an immediate lump-sum annual-leave payout under the policies described. The opinion read La. R.S. 42:421 as allowing payment after separation from state employment or retirement, not simply after a transfer within state service.

The AG said the executive order on unclassified leave did not control these higher education systems because they managed their own systems. LCTCS's policy forwarded unused leave to a receiving agency on that agency's request; the receiving agency's policy would not take annual leave. The AG found no existing policy requiring an immediate payout, but said LCTCS could establish a policy to pay accrued leave if it was formally adopted and attendance records were maintained. The unused annual leave could instead be held until the employee completely separated from state service.

Currency note

This opinion was issued in 2003. 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.

What the opinion meant at issuance

Transferring employee

The AG said a move to another state higher education system did not itself trigger a required cash payout for the annual leave the receiving system would not accept. The opinion said the accrued leave was not lost and could remain in abeyance until state employment ended.

College-system administrators

The opinion treated each system's established policies as controlling because the executive order excluded these self-governing institutions. It found no policy then requiring a lump-sum payment and described conditions for LCTCS to establish a payment policy.

Common questions

Q: Did a transfer without a break in service require LCTCS to cash out annual leave? A: No. The AG said the existing policies did not require a lump-sum payment and the cited statute tied payment to separation from state service.

Q: What if the new system accepted sick leave but refused annual leave? A: That was the situation in the request. The opinion said unused annual leave could be held in abeyance until the employee completely left state employment.

Q: Did the executive order require a 300-hour payout? A: No. The AG said the order excluded the higher education systems involved, and its quoted lump-sum provision addressed final termination from state service.

Q: Could LCTCS adopt a policy for paying accrued leave? A: The opinion said it could establish such a policy if the policy was formally adopted and attendance records were kept as the statute required.

Background and statutory framework

The opinion distinguished the executive order's general unclassified-employee leave provisions from systems authorized to supervise themselves under La. R.S. 17:1871(B)(1) and constitutional provisions. It then considered the institutions' leave policies and La. R.S. 42:421's rule on payment for accrued annual leave after separation from employment.

Citations and references

Statutes quoted or cited: La. R.S. 42:421; La. R.S. 17:1871(B)(1).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/03-0236

Original opinion text

One American Place
301 Main Street, Suite 600
DEPARTMENT OF JUSTICE
P.O. Box 94005
CIVIL DIVISION
TEL.: (225) 342-7013
BATON ROUGE
FAX: (22S) 342-2090

RICHARD P. IEYOUB
70804-9005
ATTORNEY GENERAL

AUG 1 4 2003
OPINION NUMBER 03-0236

109
STATE - Employees and Departments
La. R.S. 17:1871, 17:1871(B)(1)
La. Constitution, Art. VIII, § 7(A), La. Const. Art. VIII, § 6(A) Executive Order MJF 98-23, § 10
La. R.S. 42:421, La. R.S. 42:421(B)
Leo C. Hamilton
La. Atty. Gen. Op. No. 88-316, La. Atty. Gen. Op. No. 89-191, La. Atty.
Breazeale, Sachse, & Wilson, L.L.P. Gen. Op. No. 76-587, La. Atty. Gen. Op. No. 86-768, La. Atty. Gen. Op.
No. 84-842
One American Place, Suite 2300
P.O. Box 3197
In unclassified systems of state employment, those institutions specifically
excluded from Executive Order MJF 98-23 are to be controlled by their
Baton Rouge, LA 70821-3197
own established policies.

Dear Mr. Hamilton:

You have requested this office to issue an advisory opinion regarding the appropriate action in a circumstance where a former unclassified employee of the Louisiana Community and Technical College System has transferred to employment with another higher education system without a break in service.

Executive Order MJF 98-23 covers rules and policies concerning unclassified state employee leave. Section 1 of the executive order makes it applicable to "all officers and employees in the unclassified service of the executive branch of the State of Louisiana with the exception of... the officers and employees of a system authorized by the Louisiana Constitution or legislative act to manage and supervise its own system." The Louisiana Community and Technical College System (LCTCS) was given the power to manage and supervise its own system by La. R.S. 17:1871(B)(1). Regarding the other systems of higher education, all fall within the above exception (LSU and Southern University are covered by La. Const. Art. VIII, § 7(A); all others fall within La. Const. Art.
VIII, § 6(A). Also, Title 17 of the Revised Statutes grant this power to the systems).
Thus, the LCTCS falls within the exception of the executive order.

Therefore, the particular rules of the agencies will be the guide. LCTCS requires that accumulated unused annual and sick leave be forwarded to the gaining agency "upon request of the gaining agency." However, in this particular instance, the gaining agency, by rules adopted by its Board of Supervisors, only permits acceptance of transferred employee’s sick leave balances but not his/her annual leave balances.
Upon realizing that the gaining agency would not accept the hours, the employee has requested that he/she be paid, in a lump sum, for up to 300 hours of accrued annual leave by the LCTCS. This parallels the provision provided by Executive Order MJF 98- 23, § 10, which states that:

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Mr. Leo C. Hamilton
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When an employee changes employment status within the University System (Faculty/Other Academic/Unclassified/Classified) or from another State Agency to the University System without a break in service of one or more working days, accrued annual and sick leave credits of the employee will be certified and credited to the leave record; provided that an employee cannot be given more leave credit than he/she could have accrued had he/she performed all of the service under the leave accrual regulations of the University.

Upon realizing that the gaining agency would not accept the houre, the employee has requested that he/she be paid, in a lump sum, for up to 300 hours of accrued annual leave by the LCTCS. This parallels the prevision provided by Executive Order MJF 98- 23, § 10, which states that

Upon the resignation, death, removal, or other final termination from state service of an unclassified officer or employee, the officer or employee’s accrued annual leave shall be paid in a lump sum, up to a maximum of three hundred (300) hours, disregarding any final fraction of an hour.

La. R.S. 42:421(B) also states that an unclassified

Employee or ex-employee of the state or of any state agency may be paid for accrued annual leave.., after his separation from his office or employment if the annual leave has been accrued under established leave regulations and an attendance record has been maintained for the employee by his supervisor.

The First Circuit also concluded that § 421 of the statute only applies to employees after their separation from employment or retirement. Shea v. Louisiana State Employee’s Retirement System, 521 So.2d 614 (La.App. 1 Cir. 1988), writ denied, 523 So.2d 235. Attorney General’s Opinion No. 88-316 also reinforces the fact that La. R.S. 42:421 governs unclassified employees and that they are entitled to receive a lump sum of compensation for annual leave only upon retirement and separation.

There seems to be nothing in the policies of the LCTCS or the gaining higher education board that would demand they make a payment in lump of the accrued annual leave. The Constitution and the laws of this state give these agencies the power to control their own institutions and systems, therefore their policies would prevail. The LCTCS would be within their rights to establish a policy to pay accrued annual leave if the policy was formally established and records of attendance kept, as per the statute. La. Atty. Gen. Op. No. 89-191.

Attorney General Opinion No. 76-587 has also reinforced the fact that upon separation from one position in state government to another that did not permit accrual of leave, those employees could only be compensated for accrued unused leave".., when they ceased to be employed by the state of Louisiana in any capacity whatsoever .... " See also La. Atty. Gen. Op. No. 86-768 and 84-842. Because there were no established

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Mr. Leo C. Hamilton
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policies demanding the payment in lump be made, La. R.S. 421 dictates that the demand should only follow separation or retirement. The First Circuit and opinions of this office also agree with this reading of the statute. Upon contract with the LCTCS, it should have been understood that the hours accrued during employment as annual leave would only be transferred upon the request of the gaining agency. There exists nothing in the policies of the LCTCS that demands his/her accrued annual leave would automatically be transferred.

It has been suggested that the system should hold the accumulated unused annual leave in abeyance until such time as the individual terminates his/her active duty status. La. Atty. Gen. Op. No. 84-842 states that under La. R.S. 42:421, "accrued annual leave of a state employee is not lost because he or she transfers to a state agency where annual leave is not accrued. However, compensation for annual leave is made only when an employee ceases to be employed by the State of Louisiana." The statute would therefore permit the abeyance of accumulated unused annual leave until complete separation or termination from state employment.

We are confident that our opinion will answer any questions you have regarding this matter. If you have any other inquiries or questions, feel free to contact this office at your convenience.

Very truly yours,

RICHARD P. IEYOUB
ATTORNEY GENERAL

By:
CHARLES H. BRAUD JR.~
Assistant Attorney General "