Could a Louisiana city marshal use court-cost funds to match employees' deferred-compensation contributions?

Plain-English summary

The Ruston city marshal asked whether the office could pay the employer share of a deferred-compensation plan from a special account funded by additional criminal court costs. The 1998 attorney general opinion said it could. The statute quoted in the opinion put that account under the marshal's control for useful and necessary operating expenses. The office treated the employer's matching contribution for a voluntary supplemental retirement plan as payable from those funds.

The opinion enclosed a copy of an earlier opinion, 95-65, on the underlying plan. That enclosure said a political subdivision could establish a voluntary supplemental plan alongside a primary retirement plan or Social Security. It also said employer matching for an official or employee whose compensation was fixed by law could not raise total compensation above the amount allowed by law. Both documents cautioned that federal limits on sheltered contributions needed attention. The 1998 opinion recommended contacting the IRS Office of Chief Counsel about federal limits and Louisiana's Department of the Treasury, Division of Social Security, about Social Security benefits.

Currency note

This opinion was issued in 1998. 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.

City marshals at the time

The opinion concluded that the employer's matching share could be paid from the marshal-controlled court-cost account described in R.S. 13:1899(C). The account was for operating expenses useful and necessary to the office.

Municipal finance officials at the time

The enclosed earlier opinion treated an employer match as additional compensation when pay was fixed by statute. It said the match could not push that official's or employee's total salary beyond the legal amount.

Public employees at the time

The office discussed a voluntary supplemental retirement plan with employee contributions and an employer match, separate from a primary plan or Social Security coverage. It did not decide federal contribution limits itself.

Common questions

Q: Could the marshal use the special criminal court-cost account for the employer match?
A: Yes. The 1998 opinion expressly said matching contributions could be paid from the funds collected under R.S. 13:1899(C).

Q: Did the plan replace Social Security or a primary retirement plan?
A: The opinion described the plan it approved as voluntary and supplemental, separate from and in addition to a primary plan or Social Security coverage.

Q: Could a match increase compensation above a salary fixed by law?
A: The enclosed opinion said no. It treated the employer match as additional compensation and limited it where statutory pay or per diem was fixed.

Q: Did the attorney general decide how much could be sheltered under federal tax law?
A: No. The opinion cautioned about federal limits and recommended consulting the IRS Office of Chief Counsel about those limits and Louisiana's Department of the Treasury, Division of Social Security, about Social Security benefits.

Background and statutory framework

R.S. 13:1899(C), as quoted in the letter, created a separate account from an additional criminal court cost, under the city marshal's or constable's control and subject to audit. Its stated purpose was to defray useful and necessary office expenses. The opinion applied that account authority to employer retirement-plan contributions and enclosed Opinion 95-65, which analyzed the supplemental plan and statutory compensation limits.

Citations and references

• R.S. 13:1899(C) (marshal-controlled operational account)
• Attorney General Opinion No. 95-65 (enclosed analysis of voluntary supplemental plans)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/98-0306

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

~t~te o~ ~oui~i~
One American Place
301 Main Street, Suite 600
DEPARTMENT OF JUSTICE
P.O. Box 94005
CIVIL DIVISION
TEL.: (504) 342-7013
BATON ROUGE
FAX: (504) 342-2090

RICHARD P, IEYOUB
70804-9095
ATTORNEY GENERAL

AUGUST 24 1998
OPINION NUMBER 98-306
Syllabus

60: Laws: General
92-A-2-(e): Retirement: Parochial Employees
Honorable F. Michael Hilton 107: Sheriffs: Constables and Marshals
Ruston City Marshal
107-1 : Soc=al Security
R.S. 13:1899(C)
Post Office Box 1582
AG Op No. 95-65
Ruston, Louisiana 71273-1582
City marshal may implement a voluntary supplemental ret=rement plan and pay the employer’s portion out of the funds collected pursuant to R.S. 13 1899(C)

Dear Marshal Hilton:

You have requested an opinion of the Attorney General regarding your authority to participate in a deferred compensation plan. You specifically ask whether you may pay the Employer’s contribution for such a plan out of the Ruston Marshal’s Office General Fund established pursuant to R.S. 13:1899(C). It provides, in pertinent part, the following:

"C. In all criminal matters, the city judge shall assess, in addition to the foregoing costs, the sum of ten dollars as additional costs of court, the proceeds from which shall be deposited in a special account, separate and distinct from the account provided for in Subsection B of this Section, which account shall be in the name of and under the control of the marshal or constable of the court, shall be subject to audit, and shall be used to defray operational expenses of the office of marshal or constable of the court, all as may be useful and necessary for the proper conduct of the marshal’s or constable’s office, .... "

As can be seen from the above, the marshal is authorized to use the funds collected pursuant to Section 1899(C) to defray the operational expenses of the office, all as may be useful and necessary for the proper conduct of said office.

This office has previously opined that a political subdivision is authorized to implement a voluntary supplemental retirement plan with employee contributions and employer match which would be separate from, and in addition to, a primary retirement plan or Social Security coverage. Attorney General Opinion No. 95-65. The opinion further concluded that matching contributions by the employer on behalf of an employee and/or elected or appointed official were permissible. I’m enclosing a copy of this opinion for your reference and convenience.

Further, it is the opinion of this office that the employer’s portion of matching contributions may be payable from funds collected pursuant to R.S 13:1899(C).

Page 2

Opinion No. 98-306
F. Michael Hilton, Ruston City Marshal
Page -2-

Further, it is the opinion of this office that the employer’s portion of matching contributions may be payable from funds collected pursuant to R.S 13:1899(C).

Extreme care should be taken by one seeking to implement such a plan to insure that the total amount of employee contributions eligible for a shelter does not exceed that allowable under federal law. In this regard, we recommend that, before implementing such a plan, you contact Tom Brisendine with the Office of Chief Council, Internal Revenue Service, (202) 622-6030. We further recommend that you contact Linda Yelverton, Department of the Treasury, Division of Social Security, (504) 342-0026, with regard to any questions pertaining to Social Security benefits.

Trusting this adequately responds to your inquiry, I am

Very truly yours,

RICHARD P. IEYOUB
ATTORNEY ~

ROBERT -~"FI-ANHOU N, iii
Assistant Attorney General

RPI / Rob3 / cla
Enclosure

Page 3

DEPARTMENT OF JUSTICE
P.O. BOX 94095
Tel.: (504) 342-4604
70804-9095
Fax: (504) 342-3885
J~.ICHARD P. IE’YOUB
ATTORN[Y GENERAL

OPINION NUMBER 95-65

60 -L~w~ -General
92-A-2-(e) - Retirement/Paroc,hial Employees
107-1 - Social Se~-ity
R.S. 42:1301, etc.
Mr. Emery Bares, Chairman
A political subdivision may establish a volunta~ supplemental n,-tir~ment plan with
Deferred Compensation Commission
employee contributions and employer m~h, which plan would be separate f~om and
2237 South Acadian Thruway, Suite 702
in addition to a primary ~tiremenl plan or Social Security coverage. The plan could
involve matching contributions by the employer on behalf of an employee and on
Baton Rouge, LA 70808
behalf of an ele~,,d or appointed ofl3ciaJ unless the implementation of the ma~ch
would exc~eed the compensation of~ employee or official that is fixed by tlamte.

Dear Mr. Bares:

You have requested an opinion from the Attorney General regarding the Louisiana Deferred Compensation Plan, You aote that the plan was established in accordance with R.S. 42:1301-1308 and IRC Section 457, for the purpose of providing supplemental retirement income to employees and independent contractors of a Louisiana public employer, by offering such individuals the opportunity to defer a portion of their compensation into the Plan.

Currently, participants and employers are utilizing the Plan under the following scenarios:

1. As a voluntary plan with employee only deferrals, separate from, and in addition to, a primary retirement plan or Social Security coverage.

As a mandatory plan with employee only deferrals, in lieu of Social Security coverage (as per IRC Section 3121).

As a mandatory plan with employee and employer contributions, in lieu of Social Security coverage (as per IRC Section 3121).

As a voluntary plan with employee contributions and employer match, as a supplemental retirement arrangement, separate from, and in addition to, a primary retirement plan or Social Security coverage.

You have requested our opinion concerning the following question:

May a political subdivision establish a voluntary supplemental retirement plan with employee contributions and employer match, which plan: (1) would be separate from, and in addition to, a primary retirement plan or Social Security coverage, and (2) which would involve matching contributions by the employer on behalf of an
employee (whether classified or unclassified) and on behalf of an elected or

Page 4
employee (whether classified or unclassified) and on behalf of an elected or appointed official (whether serving at a prescribed compensation level or on a per diem basis)?

In answer to your question, we have reviewed the provisions of this state’s statutory and constitutional laws, and have consulIed with representatives of the Louisiana Department of Treasury, Division of Social Seaa’ity, as well as representatives of the Internal Revenue Service, and can find no prohibition against the implementation by a political subdivision of a voluntary supplemental retirement plan with employee contributions and employer match which would be separate from, and in addition to, a primary retirement plan or Social Security coverage. We further note that this question was previously addressed by this office in Opinion Nos. 90-292 and 292-A. Therein, it was opined that, if the Plan constitutes an authorized pension program, voluntary and/or involuntary contributions made by an employer would not be prohibited under the Consitution and laws of this state. See Article VII, Section 14(B)(2).

Ftmher, we see no prohibition for said plan to involve matching contributions by the employer on behalf of an employee and/or elected or appointed official, with one exception. It is axiomatic that if the salary and/or per diem of a public official or employee is fixed by statute, that salary and/or per diem constitutes the maximum that can be received by that official or employee. Under the plan contemplated in your request, since any matching contribution by an employer comprises additional compensation to the official or the employee, same would constitute an increase over and above that authorized and/or allowed by law. Consequently, the employer match for an official and/or employee whose salary and/or per diem are fixed by law, can only be implemented to the extent that it does not result in the ofBcial’s or employee’s total salary surpassing that allowed by law.

Extreme care should be taken by the political subdivision seeking to implement the plan that the total amount of employee contributions eligible for shelter does not exceed that allowable under federal law. In this regard, we recommend that any questions pertaining to federal laws on this subject matter be referred to Tom Brisendine with the Office of Chief Counsel, Internal Revenue Service, (202) 622-6030. We further recommend that any questions pertaining to Social Security benefits be directed to Linda Yelverton, Department of the Treasury, Division of Social Security, (504) 342- 0026.

Trusting this adequately responds to your inquiries, I am

Yours very truly,

Assistant Attorney General
Ellis Magee