If a Mississippi school board approved a job and supplements but couldn't pay the full salary until the salary cap was amended, can the employee get back pay?
Plain-English summary
The Perry County School Board hired an employee for the position of Accountability/Licensure Certification Director and added two supplemental contract positions effective July 1, 2022. The employee fulfilled the duties for all three positions starting that date.
But there was a problem: combining the supplemental salaries with the base salary would push the employee's total compensation above the cap on the district's administrative pay scale. The District didn't pay the supplemental amounts. Then in September, the Board amended the pay scale to exclude supplements from the cap calculation, allowing prospective payment of the supplements.
The board attorney asked: can the District now compensate the employee retroactively for the supplemental positions covering July 1 through September 26 (the gap between the effective date and the pay scale amendment)?
The AG declined to opine. Mississippi Constitution Article IV § 96 prohibits "extra compensation" to public officers, agents, servants, or contractors after a contract of employment is made. The AG has long held that retroactive raises are forbidden, "unless such payment is clearly shown to be 'back pay' previously due, but unpaid because of administrative error."
Whether the school board's delay in amending the pay scale qualifies as "administrative error" is a factual question. The AG defers that determination to the school board, which would review its minutes, the timing of decisions, the superintendent's recommendations, and other factors.
The AG recommended consulting the Office of the State Auditor, which has more direct involvement with public-employee compensation compliance.
What this means for you
If you're a Mississippi school board
When you face a back-pay question framed as administrative-error correction, the steps are:
- Document carefully. Pull all relevant minutes, contracts, communications, and pay scale documentation.
- Make the factual finding. The board, on its minutes, must determine whether the underpayment was the result of administrative error. Be specific about what the error was, when it occurred, who was affected, and the amount.
- Coordinate with the State Auditor. Office of the State Auditor staff can guide you through the documentation and approval process. Their endorsement makes the back pay defensible.
- Pay only what's defensible. If administrative error is supportable, pay the back pay. If it isn't, paying retroactively risks Section 96 violations.
What is more clearly an administrative error: a payroll system rounding mistake, a clerical entry misclassifying a position, a missed scheduled raise that was approved but not implemented.
What is harder to characterize as administrative error: a delay in amending policy that the board could have amended earlier, a deliberate decision not to pay pending a future amendment.
If you're a school district employee in this situation
Document what you were promised, when you were promised it, and the duties you performed. If the board makes the administrative-error finding, you receive the back pay. If not, you may have other contract-law remedies, but these are complicated and pursuing them is hard.
If you're a school district attorney
This opinion is a deflection rather than a substantive answer. Plan accordingly:
- The legal threshold (was there an administrative error?) is fact-specific.
- The board's documentation has to support the finding.
- Coordinate with the State Auditor before processing back pay; their lead reduces audit risk.
If you're a state auditor field examiner
This area is yours per the AG's referral. Develop and document criteria for what counts as administrative error. School districts will be looking for guidance, especially after the AG declined to opine here.
Common questions
Q: What is Section 96?
A: Mississippi Constitution Article IV, Section 96, which prohibits extra compensation to public officers/agents/servants/contractors after the employment contract is made. It's an anti-favoritism rule that catches retroactive raises.
Q: What's the "administrative error" exception?
A: A long-standing AG-recognized exception. If pay was previously due but unpaid because of an administrative error (clerical mistake, processing failure, missed implementation), back pay can be paid without violating Section 96.
Q: Why is this fact-specific?
A: The line between "administrative error" and "policy choice that's now being undone" is judgment-laden. A pay scale that needed amendment to allow a planned supplement is different from a clerical typo on a paycheck. The first might or might not be "administrative error" depending on circumstances.
Q: What if the board does pay the back pay and it's later determined not to be administrative error?
A: Section 96 violations can lead to recovery actions by the State Auditor and personal liability for board members. That's why coordination with the Auditor before paying is recommended.
Q: Are there other paths to compensate the employee?
A: Possibly. If the employee has clear contract claims (the contract documented the pay; the district failed to pay), contract-law remedies exist independent of Section 96. But constitutional limits on government compensation generally control.
Background and statutory framework
Mississippi Constitution Article IV, Section 96 prohibits extra compensation to a public officer, agent, servant, or contractor after a contract of employment is made. The provision was meant to prevent legislative or governmental favoritism through after-the-fact compensation increases.
The administrative-error exception was developed through AG opinions over decades. The principle: Section 96 does not bar correction of an already-incurred-but-unpaid obligation. If pay was earned and earmarked but not transmitted because of error, paying it now is correction, not retroactive raise.
The line between correction and retroactive raise is the hard part. The Office of the State Auditor handles many of these determinations as part of routine audit functions. The AG has consistently directed school boards to the State Auditor for fact-specific guidance.
Citations and references
Constitutional provision:
- Miss. Const. Art. IV, § 96 (prohibition on extra compensation)
Prior AG opinions referenced:
- MS AG Op., Brown (July 7, 2017), administrative-error exception articulation
- MS AG Op., Mosley (Feb. 21, 2014), administrative-error determination is factual
- MS AG Op., Sturgeon (Aug. 14, 2006), school board factual determination
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/05/R.Caves-April-26-2023-Retroactive-Employee-Compensation-Due-to-School-District-Delay.pdf
Original opinion text
April 26, 2023
Risher G. Caves, Esq.
Board Attorney, Perry County School District
Post Office Drawer 167
Laurel, Mississippi 39441-0167
Re: Retroactive Employee Compensation Due to School District Delay
Dear Mr. Caves:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, the Perry County Board of Education (the "Board") hired an individual for the position of Accountability/Licensure Certification Director for the 2022-2023 school year and later approved the same individual for two supplemental contract positions effective July 1, 2022. The individual has since fulfilled these job duties and responsibilities.
However, because the supplemental salaries would have placed the individual's combined salary above the salary cap on the school district's administrative pay scale, the individual was not paid for the supplemental positions until the Board approved a recommendation to amend the administrative pay scale to exclude supplements from the salary cap computation at its September meeting. This Board action permitted the Perry County School District (the "District") to compensate the individual prospectively for the two supplemental positions.
Question Presented
Does the Board's delay in amending the District's administrative salary cap to exclude supplemental pay from the computation of the salary cap qualify under the "administrative error" exception to Article IV, Section 96 of the Mississippi Constitution so as to permit the District to compensate the individual for the two supplemental positions for which she was hired and for which she fulfilled job duties and responsibilities from July 1, 2022 through September 26, 2022?
Brief Response
Whether an employee was underpaid due to an administrative error is a factual determination that must be resolved by the Board. For additional guidance regarding this matter, we recommend that you contact the Office of the State Auditor.
Applicable Law and Discussion
Section 96 prohibits the payment of extra compensation to any public officer, agent, servant, or contractor after a contract of employment is made. MISS. CONST. art. IV, § 96. Accordingly, this office has consistently opined that "Section 96 strictly forbids payment of 'retroactive raises' to any public employee, unless such payment is clearly shown to be 'back pay' previously due, but unpaid because of administrative error." MS AG Op., Brown at *1 (July 7, 2017) (emphasis added) (internal citations omitted).
Whether the delay in amending the administrative salary cap would qualify as an "administrative error" is a factual question upon which this office cannot opine. MS AG Op., Mosley at 2 n.1 (Feb. 21, 2014). See also MS AG Op., Sturgeon at 2 (Aug. 14, 2006) ("[W]hether the employee was underpaid due to an administrative error [is a] factual question[] which must be resolved by the School Board after a review of the Board minutes and the recommendations of the superintendent."). It is the recommendation of this office that you contact the Office of the State Auditor for guidance in making this factual determination.
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/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General