Must a Louisiana sheriff's employee repay personal calls made on a department cell phone?

Plain-English summary

East Baton Rouge sheriff's employees who had to be reachable around the clock received department cell phones. The sheriff asked whether they had to repay occasional personal calls when a block-minute plan produced no extra charge for those calls. The Attorney General said no on the stated assumptions: the monthly allotment had to match official business needs, and personal calls could not add to the department's cost.

The request itself described how costs would be handled if use exceeded the plan: overage would first be attributed to personal calls, with reimbursement required. Choosing a plan above business needs to accommodate more personal calls would also create a personal-use cost. The AG distinguished an earlier Attorney General opinion about employee-discounted personal phone service because these devices served the sheriff's official need for immediate access.

Currency note

This opinion was issued in 2006 and addressed a specific block-minute billing plan. Later laws, policies, court decisions, or AG opinions may have changed the analysis. Review current phone costs and agency rules before applying it.

What this means for you

Sheriffs and public employers

Size the plan for official duty, especially the on-call need, and review whether personal use creates an added charge. The AG's no-reimbursement answer depended on both conditions. Document overage charges and whether an oversized plan was selected for personal convenience.

Employees with issued phones

Occasional personal calls did not require reimbursement on the no-extra-cost facts supplied to the AG. If a call pushes the bill beyond the monthly allowance, the request treated that cost as reimbursable personal use.

Common questions

Did the AG permit unlimited personal calling?

No. It addressed occasional use that imposed no additional cost under a plan appropriate to official business needs.

What if the plan exceeds its monthly minutes?

The facts submitted to the AG said extra charges would first be attributed to personal calls and reimbursement required. Its answer assumed no added cost from the incidental calls it approved.

Why did an older cell-phone opinion reach a different result?

The AG said that earlier opinion involved discounted personal service offered to school employees. Here, department phones were issued for official work to employees who had to be reachable twenty-four hours a day.

Background and statutory framework

La. Const. Art. VII, Sec. 14 limited donations of public resources. The AG weighed the public benefit of rapid contact with emergency personnel against the cost of occasional personal calls. Under a business-sized flat plan with no added personal-use cost, it found no prohibited donation and no reimbursement requirement.

Citations

• La. Const. Art. VII, Sec. 14 (public-resource restriction discussed by the AG).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/06-0225

Original opinion text

November 6, 2006
OPINION NUMBER 06-0225

90-A-1 PUBLIC FUNDS & CONTRACTS
La. Const. Art. VII, Sec. 14
Hon. Elmer B. Litchfield
Employees of the East Baton Rouge Sheriff’s
Sheriff and Tax Collector
Department, who must be accessible twenty-four hours
East Baton Rouge Parish
a day, and are therefore provided Department issued
cell phones, are not required to reimburse the
P.O. Box 3277
Department for personal calls under a block-minute
Baton Rouge, Louisiana 70821
billing plan, provided the monthly minute limit selected
will be appropriate to official business needs and the personal calls do not incur any cost in excess of the
Dear Sheriff Litchfield: monthly charges due.

You requested an Attorney General’s opinion regarding the personal use of public cell phones by public employees. You indicate that in Attorney General Opinion No. 95-174 our office opined that, to avoid a constitutionally prohibited donation of public finds, public employees must reimburse their employers for their personal use of public cell phones. You also point out that over the ensuing decade, block-minute billing plans have become ubiquitous. Under these plans, personal calls incur no individual charges. Thus, you feel that cell phone usage is now more analogous to land-line phone use and to analysis under the line of Attorney General Opinions approving no-cost personal use of a public vehicle.

Based on the foregoing, you question whether any reimbursement is required for personal calls under a block-minute billing plan. You advise that these calls do not incur any cost in excess of the monthly charges due irrespective of personal calls. For purposes of this opinion you ask us to assume that the monthly minute limit selected will be appropriate to official business needs. If the monthly limit is exceeded, thereby incurring additional charges, these would be first attributed to personal calls and reimbursement required. Also, if a monthly limit clearly in excess of business needs was selected for the purpose of allowing more than an incidental number of personal calls, the additional cost would be attributable to personal use.

To answer your question, we first note that that Opinion No. 95-174 involved an attempt by The Washington Parish School Board to provide discounted cellular phone service to all employees of the School Board. The School Board was to receive a governmental agency discount rate for cellular service, and the users would pay the monthly cell phone bills. Those facts are distinguishable from your situation. The cell phones provided by your office will be for official business needs, and will be provided to those employees who must be accessible twenty-four hours a day. Therefore, our office agrees that your question is more analogous to the personal use of public vehicles.

Page 2

Hon. Elmer B. Litchfield
Opinion Number 06-0225
Page -2-

The issue presented by your request must be addressed in light of the provisions of La. Const. (1974) Art. VII, Sec. 14, and which contain the constitutional standard for the lawful use of public funds and property. La. Const. Art. VII, Sec. 14(A) generally prohibits the state and its political subdivisions from loaning, pledging or donating public funds, assets or property to persons, associations or corporations, public or private.

This office has long recognized the caution which must be exercised in the expenditure of public funds and use of public property. The expenditure or use must be for a public purpose and create a public benefit proportionate to its cost. Attorney General’s Opinion No. 90-63.

The fact that a cell phone might be used occasionally for some personal use does not render its cost to the public disproportionate to the public benefit realized in having rapid deployment of emergency decision-making personnel to an incident or emergency. Attorney General Opinion No. 06-0124 and 90-370 (Occasional personal use of public vehicle furnished to Hospital Administrator on 24-hour call does not constitute a prohibited donation of public property).

Accordingly, it is the opinion of this office that employees of the East Baton Rouge Sheriff’s Department who are provided Department issued cell phones are not required to reimburse the Department for personal calls under a block-minute billing plan. Under the situation you have described and the assumptions given, and provided there is no additional cost incurred by the Department, the occasional personal use of Department issued cell phones does not violate Art. VII, Section 14 of the Louisiana Constitution.

Trusting this adequately responds to your request, we remain

Yours very truly,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

BY: _________
KENNETH L. ROCHE, III
Assistant Attorney General

CCF, JR/KLR, III/crt

Page 3

Opinion Number 06-0225

90-A-1 PUBLIC FUNDS & CONTRACTS

La. Const. Art. VII, Sec. 14

Employees of the East Baton Rouge Sheriff’s Department, who must be accessible twenty-four hours a day, and are therefore provided Department issued cell phones, are not required to reimburse the Department for personal calls under a block-minute billing plan, provided the monthly minute limit selected will be appropriate to official business needs and the personal calls do not incur any cost in excess of the monthly charges due.

Hon. Elmer B. Litchfield
Sheriff and Tax Collector
East Baton Rouge Parish
P.O. Box 3277
Baton Rouge, Louisiana 70821

Date Received:

Date Released: November 6, 2006

Kenneth L. Roche, III
Assistant Attorney General