If a Mississippi county overpaid sick leave by mistake, can other employees donate leave so the worker can repay it?

Plain-English summary

Panola County had a leave-donation policy. When an employee suffered a catastrophic illness or injury, coworkers could donate accumulated sick or vacation leave so the colleague could keep getting paid through recovery. After one such situation, the county discovered an administrative error: it had paid out more sick leave to the employee than the employee had actually accumulated, even after the donations. The question was whether other employees could now donate additional leave specifically to let the colleague repay that erroneously paid amount, or whether that would amount to an unlawful retroactive bonus.

The AG: yes, this works, but only under three conditions.

First, the county has to determine, as a factual matter, that an administrative error happened, not a discretionary decision the county is now second-guessing. The line between "we paid the wrong amount because somebody miscoded a form" and "we changed our mind about what we already paid" is the line between fixable and unfixable.

Second, the county's leave-donation policy has to have been lawfully enacted and in place before the catastrophic illness or injury. Mississippi Constitution Article 4 § 96 (no retroactive extra compensation) and § 66 (no donations) bar a public employer from inventing a benefit after the fact and applying it to past services. A donation policy adopted prospectively, before any specific employee qualifies, is not a retroactive grant, it is part of the standing benefits package.

Third, the result has to be repayment of the overpayment, not a top-up of the employee's compensation.

The opinion sidesteps two issues the AG never decides for anyone: it does not bless any specific past action by Panola County, and it does not interpret the county's specific local policy. The legal mechanism is approved; the application to a particular case stays a county decision subject to judicial review.

What this means for you

For county and municipal payroll administrators

Under the opinion, where a county determines that an administrative error caused an employee to be paid sick leave the employee had not earned, the county may let the employee repay using leave donated under the county's leave-donation policy, provided that policy was lawfully enacted before the employee's catastrophic injury or illness. The opinion treats that as correcting an administrative error, not a retroactive salary increase or extra compensation, so it is not barred by Sections 66 or 96. Whether a given adjustment is an impermissible retroactive change or the correction of an administrative error is "a factual determination to be made by the County and is subject to judicial review."

For county boards of supervisors

The opinion turns on timing: the leave-donation policy "must be in place prior to the employee's injury or illness." A policy adopted before any specific employee qualifies is part of the benefits package; one adopted after an employee is already sick would be a new benefit for past service, which Sections 66 and 96 forbid. The opinion does not bless any specific past action or interpret the county's own policy.

For public employees in this situation

The opinion describes a path that respects the constitutional limits: if there was an administrative error and a pre-existing donation policy, the county may allow repayment of the overpaid amount with donated leave. It does not say how any particular county must handle a specific case; that determination is the county's, subject to judicial review.

Common questions

Q: Can a Mississippi public employer just write off the overpayment?
A: No. The opinion rests on the rule that retroactive salary increases are prohibited by Section 96; simply forgiving an overpayment would be a retroactive change in compensation. What is allowed is correcting the administrative error, including repayment with donated leave under a pre-existing policy.

Q: Why does the timing of the leave-donation policy matter?
A: Because a leave policy must "operate prospectively only." The opinion cites Cowgill (2006) and Keith (2015): leave granted after a policy's effective date is part of the benefits package, but a benefit created after the employee is already sick would be an unlawful donation under Section 66. So the donation policy has to predate the catastrophic injury or illness.

Q: What counts as a "catastrophic" illness or injury?
A: The opinion does not define it; it assumes for this request that the illness qualifies "under the County's policy." The county's own policy supplies the definition.

Q: Did the AG approve what Panola County actually did?
A: No. The opinion is issued on prospective questions only, "neither validate[s] nor invalidate[s] past actions," and states the office "do[es] not interpret local ordinances or policies." It approves the legal mechanism for the future, not any specific past action or the county's specific policy.

Q: Does this reasoning apply to a city or other political subdivision?
A: The constitutional provisions in Sections 66 and 96 apply to counties and municipalities, not just the legislature, and the opinion relies on Cowgill, which involved a municipal leave policy. The same test applies: an administrative error plus a prospectively adopted donation policy.

Background and statutory framework

Two Mississippi constitutional provisions drive the answer. Article 4, Section 66 prohibits laws granting a donation or gratuity in favor of any person, and Article 4, Section 96 prohibits granting extra compensation to a public officer, agent, servant, or contractor after service rendered. The opinion treats both as binding on counties, not just the legislature.

Against that backdrop, the opinion applies the office's longstanding rule that administrative errors can be corrected. It cites Mosley (2014) that erroneous payments, whether an employee was underpaid or overpaid, may be corrected, because correcting an error is not a retroactive change in compensation. It also cites Keith (2015) and Cowgill (2006) for the requirement that any policy granting leave "operate prospectively only."

Section 7-5-25 limits AG opinions to prospective questions of state law, and the office does not interpret local ordinances or policies (Hill 2021); that is why the opinion declines to validate Panola County's prior actions or its specific policy.

Citations

• Miss. Code Ann. § 7-5-25 (AG opinion authority limited to prospective state law questions)
• Miss. Const. Art. 4, § 66 (prohibition on donations)
• Miss. Const. Art. 4, § 96 (prohibition on retroactive extra compensation)
• MS AG Op., Mosley (Feb. 22, 2014) (correction of administrative payroll errors permitted)
• MS AG Op., Cowgill (May 19, 2006) (leave policies must operate prospectively)
• MS AG Op., Keith (Apr. 3, 2015) (prospective-only application of leave grants)
• MS AG Op., Hill (Sept. 30, 2021) (AG does not interpret local ordinances or policies)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/09/C.Baker-September-6-2022-Donation-of-Sick-Leave.pdf

Original opinion text

September 6, 2022

C. Gaines Baker, Esq.
Attorney, Panola County Board of Supervisors
136 Public Square
C.G. Baker Building, Suite One
Batesville, Mississippi 38606
Re:

Donation of Sick Leave

Dear Mr. Baker:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, Panola County (the "County") has a policy allowing county employees
to donate sick and vacation leave to a fellow employee who suffers from a catastrophic injury or
illness. You state that the County recently discovered that an employee received significant sick
leave pay beyond his or her accumulated hours. Other County employees subsequently offered to
donate their leave pursuant to the County's policy to enable the employee to repay the salary he or
she had erroneously received.
Question Presented
If an employee suffers a catastrophic illness or injury and is mistakenly granted more sick leave
than he or she has accumulated, may the County allow that leave to be repaid using donated sick
leave pursuant to the County's leave donation policy?
Brief Response
If the County determines that due to an administrative error it erroneously granted an employee
sick leave pay that the employee had not earned, the County may allow the employee to repay the
County using donated sick leave in accordance with a lawful policy enacted prior to the employee's
catastrophic illness or injury. This would not be a retroactive salary increase nor extra
compensation; thus, it would not be prohibited by Section 96 or 66 of the Mississippi Constitution.

Applicable Law and Discussion
As an initial matter, we note that official opinions of this office are issued on prospective questions
of state law pursuant to Section 7-5-25 of the Mississippi Code. Official opinions neither validate
nor invalidate past actions. Further, this office does not interpret local ordinances or policies. MS
AG Op., Hill at 1 (Sept. 30, 2021). Thus, we offer no opinion on any action previously taken by
the County or the validity of the County's specific employment policy referenced in your request.
As of the date of this request, we understand that no donated leave has been applied to the
repayment. We understand that the County had enacted a lawful leave donation policy prior to the
employee's injury or illness, and we assume for the purposes of this request that the injury or
illness suffered qualifies as catastrophic under the County's policy. We offer the following for
prospective purposes.
This office has consistently opined that while retroactive salary increases are prohibited by Section
96 of the Mississippi Constitution, erroneous payments made because of an administrative error
may be corrected. MS AG Op., Mosley at 1 (Feb. 22, 2014). This is true whether the employee
in question was erroneously underpaid for a salary to which he or she was statutorily entitled or
whether the employee was overpaid and thus owes its employer for the overpayment. Whether an
adjustment to a previously paid salary is an impermissible retroactive change in salary or the
correction of an administrative error is a factual determination to be made by the County and is
subject to judicial review.
Additionally, in order to avoid a violation of either Section 66 or Section 96 of the Mississippi
Constitution, any policy or regulation granting leave to employees must "operate prospectively
only." MS AG Op., Keith at 2 (Apr. 3, 2015) (citing MS AG Op., Cowgill (May 19, 2006)). In
Cowgill, we were asked about the adoption of an inclement weather policy that would grant leave
with pay to municipal employees in the event of a weather emergency. MS AG Op., Cowgill at 1
(May 19, 2006). We stated that "any leave granted from and after the effective date of that policy
would not be considered [an unlawful] donation, and would be considered part of the benefits
afforded to municipal employees." Id at *2. Similarly, for an employee to receive donated leave
for catastrophic illness or injury, the policy allowing for such donation must be in place prior to
the employee's injury or illness.
Accordingly, if the County determines that due to an administrative error it erroneously granted
an employee sick leave pay that the employee had not earned, and the County's leave donation
policy was in place prior to the employee's catastrophic injury or illness, the County may allow
the employee to repay the County using leave donated pursuant to its leave donation policy.

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