MS 2020-10-J-Lee-October-7-2020-School-Closures October 7, 2020

During COVID, can a Mississippi school district close schools and keep paying employees who didn't work?

Short answer: The AG concluded that the Cleveland School Board could close schools for the COVID-19 epidemic under Section 37-13-65 if it made the required factual findings, subject to the 180-day school-session rule. Paying staff for hours not worked would violate Section 96, but H.B. 1647 (2020) authorized administrative leave with pay during a Governor-declared emergency.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

The Cleveland School District (Bolivar County) wrestled with the same question school boards across the country wrestled with in 2020: when a pandemic forces schools to close, what happens to instruction and what happens to staff pay? The board's attorney asked the AG two questions. First, could the Board close schools for COVID-19 and provide no instruction during the closure? Second, could the Board keep paying its employees during the closure regardless of hours actually worked?

The AG's answers came from three statutory pieces and one constitutional provision.

Closing the schools. Section 37-13-65 lets a school superintendent, on application from the school board, close any school "because of an epidemic prevailing in the school district or because of the death, resignation, sickness or dismissal of a teacher or teachers or because of any other emergency necessitating the closing of the school." Mississippi law explicitly recognized epidemic-based closures.

The 180-day rule. Section 37-13-63 sets the standard 180-day school year. Closures shrink the days, so the closure rule in Section 37-13-65 expressly says schools must operate for the required full time after reopening, unless the local board submits a plan to alter the school term that is approved by the State Board of Education under Section 37-13-63(2). Local districts ordinarily set the opening and closing days under Section 37-13-61, but the AG noted that on August 4, 2020, Governor Tate Reeves issued Executive Order 1517, delaying the start of school for grades 7-12 in several counties (including all public schools in Bolivar County), and on August 6, 2020, the State Board of Education granted a waiver allowing certain districts, including those in Bolivar County, to reduce the instructional calendar by up to 10 days.

Paying employees. Article 4, Section 96 of the Mississippi Constitution says the Legislature "shall never grant extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered or contract made." Compensating an employee for hours not worked would be an unlawful donation under Section 96.

The H.B. 1647 carve-out. The Legislature anticipated this exact problem. House Bill 1647, signed by the Governor on March 19, 2020, authorized boards of supervisors, municipal governing authorities, and local school boards to "grant administrative leave with pay during the affected period within the affected county, municipality or school district to the employees of such governmental entities on a local or statewide basis in the event of extreme weather conditions or in the event of a man-made, technological or natural disaster or emergency, if such event has resulted in an emergency declaration by the Governor." If a school board grants administrative leave with pay under H.B. 1647, that is not a forbidden donation; it is an authorized form of compensated leave. Any employee on a previously approved leave during the affected period would be eligible for the administrative leave too and would not be charged for the previously approved leave.

So the answer in short: yes the Board could close, subject to the 180-day rule and any state-level adjustments; and no the Board could not just pay people for hours not worked outside an authorized administrative-leave-with-pay structure under H.B. 1647.

Currency note

This opinion was issued in 2020. 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

Why is COVID-19 covered by Section 37-13-65?

Because Section 37-13-65 names "an epidemic prevailing in the school district" as a basis for closure. The statute does not list specific diseases. The AG read the statute's plain language to cover the COVID-19 outbreak, provided the local school board made the required factual findings.

Did the Cleveland School District have to put the closure to the State Board of Education?

Closing the schools did not by itself require state approval, but altering the 180-day calendar did. Section 37-13-65 says schools must operate for the required full time after reopening, unless the local board's plan to alter the term is approved by the State Board under Section 37-13-63(2).

What did Governor Reeves and the State Board do for Bolivar County?

Executive Order 1517 (August 4, 2020) delayed the start of school for grades 7-12 in several counties, including all public schools in Bolivar County. On August 6, 2020, the State Board of Education granted a waiver allowing certain districts, including those in Bolivar County, to reduce the instructional calendar by up to 10 days.

Why is paying staff for hours not worked a constitutional problem?

Article 4, Section 96 of the Mississippi Constitution forbids "extra compensation, fee, or allowance" to a public officer, agent, servant, or contractor "after service rendered or contract made." The AG treated paying for hours never worked as falling inside that prohibition, an unlawful donation.

What did H.B. 1647 (2020) actually do?

It authorized boards of supervisors, municipal governing authorities, and local school boards to grant administrative leave with pay during a Governor-declared emergency, including weather, man-made, technological, and natural disasters or emergencies. With that authorization in place, paying employees during a qualifying emergency closure was not a Section 96 donation; it was statutorily permitted leave. H.B. 1647 also said any employee on a previously approved leave during the affected period would be eligible for the administrative leave and would not be charged for the previously approved leave.

Background and statutory framework

Three statutes and one constitutional provision do the work.

Section 37-13-65 authorizes closure: "Upon application from the school board, the superintendent of schools may close any school because of an epidemic prevailing in the school district or because of the death, resignation, sickness or dismissal of a teacher or teachers or because of any other emergency necessitating the closing of the school. However, all such schools so closed shall operate for the required full time after being reopened during the scholastic year, unless the school board of the local school district submits a plan to alter the school term that is approved by the State Board of Education under the authority of Section 37-13-63(2)."

Section 37-13-63 sets the 180-day calendar baseline and lets the State Board approve waivers in some circumstances.

Section 37-13-61 lets local school districts set opening and closing days for the school term.

Section 96 of the Mississippi Constitution forbids extra compensation after service rendered.

H.B. 1647, Reg. Sess. (Miss. 2020), signed by Governor Reeves on March 19, 2020, authorized administrative leave with pay during a Governor-declared emergency.

The opinion is signed by Special Assistant Attorney General Beebe Garrard on behalf of Attorney General Lynn Fitch.

Citations

Miss. Code Ann. Section 37-13-65 (school closure for epidemic)
Miss. Code Ann. Section 37-13-63 (180-day school year)
Miss. Code Ann. Section 37-13-63(2) (State Board waiver authority)
Miss. Code Ann. Section 37-13-61 (local opening and closing days)
Miss. Code Ann. Section 7-5-25 (limits on AG opinions)
Mississippi Constitution Article 4, Section 96 (no extra compensation)
H.B. 1647, Reg. Sess. (Miss. 2020) (administrative leave with pay during emergencies)
Executive Order 1517 (August 4, 2020) (delayed start for grades 7-12)
State Board of Education Waiver (August 6, 2020) (10-day calendar reduction)

Source

Original opinion text

October 7, 2020

Jamie F. Lee, Esq.
Board Attorney, Cleveland School District
Post Office Box 1209
Cleveland, Mississippi 38732

Re: School Closures

Dear Ms. Lee:

The Office of the Attorney General has received your request for an official opinion.

Questions Presented

If the Cleveland School Board (the "Board") makes the requisite factual finding, does it have authority to close its schools due to the COVID-19 pandemic and during such closure, provide no instruction to students?
If the answer to Question Number 1 is "yes," does the Board have authority to pay its employees during the closure, regardless of the hours actually worked?

Brief Response

In response to your first question, yes. Pursuant to Mississippi Code Annotated Section 37-13-65, upon application from the school board, the superintendent may close any school within his or her district due to an "epidemic prevailing in the school district" or "because of the death, resignation, sickness or dismissal of a teacher or teachers." However, the school board must keep its schools in session for the mandatory number of days required by Section 37-13-63, unless this requirement is modified by the Governor and/or the State Board of Education.

In response to your second question, compensating an employee for hours not actually worked would be an unlawful donation violating Section 96 of the Mississippi Constitution. However, depending upon the facts, the Board may have authority to place its employees on administrative leave with pay.

Applicable Law and Discussion

Pursuant to Section 7-5-25 of the Mississippi Code, this office can only issue official opinions on matters involving prospective actions. An official opinion will not validate or invalidate a past action. Accordingly, this opinion relates only to prospective actions taken by the Board.

With respect to your first question, Mississippi Code Annotated Section 37-13-65 governs closing schools, under certain circumstances, and provides:

Upon application from the school board, the superintendent of schools may close any school because of an epidemic prevailing in the school district or because of the death, resignation, sickness or dismissal of a teacher or teachers or because of any other emergency necessitating the closing of the school. However, all such schools so closed shall operate for the required full time after being reopened during the scholastic year, unless the school board of the local school district submits a plan to alter the school term that is approved by the State Board of Education under the authority of Section 37-13-63(2).

Miss. Code Ann. § 37-13-65. Accordingly, Mississippi law explicitly authorizes school closure based on an "epidemic prevailing in the school district" or "because of the death, resignation, sickness or dismissal of a teacher or teachers." Id.

However, as set forth in Section 37-13-65, schools must be in session for the requisite number of days proscribed by law. Pursuant to Section 37-13-63, school must be in session for a minimum of one hundred eighty days in each scholastic year. Nevertheless, the State Board of Education has authority to allow a school district to operate for less than one hundred eighty days in certain circumstances. Id. Typically, local school districts set the opening and closing day of the school term pursuant to Section 37-13-61. However, on August 4, 2020, Governor Tate Reeves issued Executive Order 1517, which delayed the start of school for grades seven through twelve for several counties, including all public schools located in Bolivar County. On August 6, 2020, the State Board of Education subsequently granted a waiver allowing certain school districts, including those in Bolivar County, to reduce the instructional calendar by up to ten days.

Thus, it is the opinion of this office that if a local school district makes the requisite factual findings, it has the authority pursuant to Section 37-13-65 to close one or more of its schools due to an "epidemic prevailing in the school district" or "because of the death, resignation, sickness or dismissal of a teacher or teachers." However, the school district must comply with the requirements in Section 37-13-63 regarding the number of days a school must be in session during a scholastic year, which may be modified by the Governor and/or the State Board of Education.

Turning to your second question, with respect to employee compensation, you must consider Section 96 of the Mississippi Constitution, which provides:

The Legislature shall never grant extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered or contract made, nor authorize payment, or part payment, of any claim under any contract not authorized by law; but appropriations may be made for expenditures in repelling invasion, preventing or suppressing insurrections.

MISS. CONST. art. IV, § 96. Compensating an employee for time he or she did not work would be an unlawful donation in violation of Article 4, Section 96 of the Mississippi Constitution.

However, depending upon the facts, the Board may have authority to place its employees on administrative leave with pay. House Bill 1647, signed into law by the Governor on March 19, 2020, authorizes local school districts to grant administrative leave with pay in the event of certain disasters or emergencies:

From and after March 14, 2020, the board of supervisors of any county, the governing authority of any municipality and the local school board of any public school district may grant administrative leave with pay during the affected period within the affected county, municipality or school district to the employees of such governmental entities on a local or statewide basis in the event of extreme weather conditions or in the event of a man-made, technological or natural disaster or emergency, if such event has resulted in an emergency declaration by the Governor. Any employee on a previously approved leave during the affected period shall be eligible for such administrative leave granted by the governing authority, and shall not be charged for his or her previously approved leave during the affected period.

H.B. 1647, Reg. Sess. (Miss. 2020).

Accordingly, a school district may not pay its employees for time not worked, as such would be an unlawful donation in violation of Section 96 of the Mississippi Constitution. However, a school district could possibly place its employees on administrative leave with pay pursuant to H.B. 1647.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,
LYNN FITCH, ATTORNEY GENERAL

By: /s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General