Could a Louisiana city pay a police sergeant a delayed seniority raise retroactively?

Plain-English summary

In 2005, the Louisiana Attorney General did not decide whether Rayne owed a police sergeant back pay for a length-of-service raise that took effect in payroll later than he expected. The missing fact was the city policy, program, or other authority governing the increase. If it made the raise mandatory when the sergeant became eligible, the unpaid difference was earned compensation and could be paid from the date of obligation. If the raise remained discretionary, a retroactive increase for past work already paid would be a prohibited donation of public funds.

The opinion distinguished correcting an unpaid obligation from awarding an extra bonus after the fact. The sergeant claimed eligibility in March 2002 and began receiving the raise in 2004, but the AG said those dates alone did not establish when the city became legally obligated to pay it.

Currency note

This opinion was issued in 2005. 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.

Common questions

Did the AG order Rayne to pay the sergeant back wages? A: No. The AG lacked the policy or legal authority that would show whether the raise was mandatory and left that factual decision open.

When would retroactive payment have been allowed?
A: The opinion said earned compensation could be paid back to the date the city became obligated to award it.

When would retroactive payment have been prohibited? A: If the raise was discretionary and the city had no earlier obligation, extra payment for services already compensated would violate the public-funds restriction discussed in the opinion.

Background and constitutional framework

Mayor James Petitjean asked about Sgt. Mike Constantin's claimed seniority back pay. The AG quoted La. Const. Art. VII, Sec. 14(A)'s ban on donating public funds and earlier opinions distinguishing owed wages from gratuitous extra compensation. It concluded: “whether a payment of money is a donation or earned compensation is a factual determination.” Because the city's governing pay authority was not supplied, it gave a conditional rule rather than a final answer for the sergeant.

Citations

• La. Const. Art. VII, Sec. 14(A) (public-funds rule quoted in the opinion).
• Attorney General Opinion No. 05-223 (earned compensation distinction quoted in the opinion).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0060

Original opinion text

July 25, 2005

OPINION NUMBER 05-0060
15-A Constitutional Law
90-A-2 Public Funds – Loan, Pledge or Grants La. Const. Art. VII, Sec. 14
Whether a payment of retroactive wages is a constitutionally prohibited donation or a valid
Hon. James J. Petitjean, Mayor
payment of earned compensation is a factual
determination. Payment retroactive to the time
City of Rayne
at which political subdivision became obligated
P.O. Box 69
to make the payment is not a donation.
Payment of extra compensation for past
Rayne, LA 70578
services already rendered and recompensed
when the political subdivision was or is not
Dear Mayor Pettijean: obligated to do so is a prohibited donation.

You have requested an opinion from this office as to whether the City of Rayne can pay Police Sgt. Mike Constantin the back wages he claims are owed to him. According to your letter, Sgt. Constantin became eligible for a salary increase based on his length of service, on March 13, 2002. However, he did not receive the increase until sometime in 2004, and he is now requesting that the city pay the increased wages retroactive to the date he became eligible to receive the increase.

This issue must be examined in light of the provisions of Article VII, Section 14(A) of the Louisiana Constitution. It provides, in pertinent part, the following:

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

This office has consistently opined that the payment of a bonus, or any other gratuitous, unearned payment to public employees is prohibited, as same would be tantamount to a donation.1 Our opinions cite the well-established rule that in order for payments of additional compensation to public employees to be constitutionally valid, they must be in the form of salary increases for future services rendered, and not as extra compensation for past services already rendered and recompensed.2

Conversely, our office does not consider Section 14 to prohibit earned increases in compensation. We have found the payment of earned compensation retroactive to the

1
La. Atty Gen. Op Nos. 05-223, 00-68, 00-67, 95-440, 91-383; 86-639, 80-1085, 80-806 2
McElveen v. Callahan, 309 So.2d 379 (La.App. 3d Cir. 1975), writ denied, 313 So.2d 602 (La. 1975),

Page 2

Opinion Number 05-0060
Hon. James J. Pettijean
Page 2

date on which the state or a political subdivision obligated itself to make such a payment does not violate Section 14.3 In Attorney General Opinion No. 05-223, we stated:

In the context of salary increases, the payment of earned compensation retroactive to the time at which the state or a political subdivision obligated itself to make such a payment, is distinguishable from “extra compensation for past services rendered” in that the compensation is not “extra.” The compensation due, or the earned compensation, of an employee is that which an employer is required to pay pursuant to its obligation(s) to the employee. It is the payment outside of any such obligation(s) that would constitute “extra compensation for past services rendered” if distributed as a salary increase with retroactive effect.

It is the opinion of this office that whether a payment of money is a donation or earned compensation is a factual determination. We find support for this position in State v. Davis4, where the Court held:

We are presented with a factual determination: were the two payments . . . which defendant paid to himself extra compensation for past services rendered . . . or . . . salaries for services rendered but for which no salary was drawn when the services were rendered?

In Attorney General Opinion No. 86-639, this office opined that payments representing salary increases from the time a political subdivision contingently adopted a salary proposal to the time the money became available from reserve legal fees could not be made as such would constitute a retroactive payment of raises. Notwithstanding the fact that the political subdivision had previously approved the increases, the approval was contingent upon obtaining the necessary funds. Thus the political subdivision was not obligated until the funds were available.

In Attorney General Opinion Nos. 92-866 and 95-440, in which we determined that the retroactive salary increases at issue did not violate Section 14, the increases were approved, authorized and budgeted prior to the beginning of the fiscal year, thus creating an obligation.

As you are also aware, in Attorney General Opinion No. 00-68, this office opined that the Lafayette City-Parish Council could correct an administrative/clerical error that delayed the salary increases of four government employees and pay the four employees the difference in pay they should have received.

But see also, Attorney General Opinion No. 80-1095, where this office determined that the city could not compensate the judge for past services rendered. The city had awarded annual cost of living increases to all city employees, except the city judge,

3
See Attorney General Opinion No. 05-223, 92-866 and 95-440.
4
rd
359 So2d. 803 (La. App. 3 Cir. 1989), writ denied.

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Opinion Number 05-0060
Hon. James J. Pettijean
Page 3

because it erroneously believed the judge’s salary was fixed by statute and could not be increased. Our opinion was based on the permissive language in the statue.5 The city could have increased the judge’s salary, but was not required to increase it. Since the city was not obligated to increase his salary, and the judge had already been compensated for past services rendered, he could not be paid an increase for services already rendered.

As you have not been able provide this office with the source or authority for salary increases for Rayne police officers based on their length of service, we are unable to make the factual determination as to whether Sgt. Constantin can legally be paid the back wages he is requesting.

The police department must examine the authority (policy, program, statute, etc.) under which it awards salary increases based on length of service, and determine whether the department was obligated to grant Sgt. Constantin this particular salary increase on the day he became eligible for it. If you determine that the department had no discretion in awarding this salary increase, but rather was required to do so, then Sgt. Constantin can be paid retroactively to the date on which the City became obligated. If you determine that the policy, program, statute or other authority for this salary increase was permissive or discretionary, then the department was not obligated to grant the increase, and the retroactive payment of the increase to Sgt. Constantin would violate Art. VII, Section 14.

We trust this answer adequately addresses your concerns. Should you have any further questions, please contact our office.

Yours truly,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

____
DENISE B. FITZGERALD
Assistant Attorney General

CCF, JR. /DBF; mjb

5
R.S. 13:1875(10)(b)

Page 4

OPINION NUMBER 05-0060

15-A Constitutional Law

90-A-2 Public Funds – Loan, Pledge or Grants

La. Const. Art. VII, Sec. 14

Whether a payment of retroactive wages is a constitutionally prohibited donation or a valid payment of earned compensation is a factual determination. Payment retroactive to the time at which political subdivision became obligated to make the payment is not a donation. Payment of extra compensation for past services already rendered and recompensed when the political subdivision was or is not obligated to do so is a prohibited donation.

Hon. James J. Petitjean, Mayor
City of Rayne
P.O. Box 69
Rayne, LA 70578

DATE RECEIVED:
DATE RELEASED: July 25, 2005

DENISE B. FITZGERALD
ASSISTANT ATTORNEY GENERAL