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

Under this opinion, whether the board's delay in amending the salary cap qualifies as the "administrative error" exception to Section 96 is a factual determination the board must resolve, not something the AG will decide. The AG cites its Sturgeon opinion that such a question is "resolved by the School Board after a review of the Board minutes and the recommendations of the superintendent," and recommends contacting the Office of the State Auditor for guidance.

If you're a school district employee in this situation

The opinion does not decide whether you are owed the supplemental pay for the gap period. It treats the administrative-error question as a factual determination for the school board and points the district to the Office of the State Auditor for guidance. It does not address other possible remedies.

If you're a school district attorney

The opinion is a declination on the merits: it holds only that whether the underpayment resulted from administrative error is a factual question the board must resolve, and recommends contacting the Office of the State Auditor. The AG does not say whether the delay here qualifies.

If you're a state auditor field examiner

The AG expressly referred the district to the Office of the State Auditor for guidance on this factual determination, having declined to opine on whether the board's delay in amending the salary cap qualifies as administrative error under Section 96.

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 didn't the AG just answer whether the back pay is allowed?
A: The AG treats whether the underpayment resulted from an administrative error as a factual question it cannot decide by opinion, citing its Mosley and Sturgeon opinions, and recommends the district contact the Office of the State Auditor.

Q: Who decides whether the administrative-error exception applies?
A: Under the opinion, the school board, after reviewing its minutes and the superintendent's recommendations, makes that factual determination, with guidance available from the Office of the State Auditor.

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 AG has consistently read it to forbid "retroactive raises" to any public employee, "unless such payment is clearly shown to be 'back pay' previously due, but unpaid because of administrative error" (citing its Brown opinion).

Whether a given underpayment falls within that administrative-error exception is, per the AG's Mosley and Sturgeon opinions, a factual question for the school board, resolved after reviewing the board minutes and the superintendent's recommendations. For that reason the AG declined to decide it here and recommended contacting the Office of the State Auditor.

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