Can a Mississippi school district give a teacher back pay if a prior district reported the wrong number of days worked?

Plain-English summary

A teacher in the Quitman School District was placed on the salary scale based on years-of-service verifications received from her previous employers. One of those prior districts reported the wrong number of days she had worked, leaving her one full year of credited experience short. After the prior district corrected its verification, the question became whether Quitman could go back and pay her the difference she would have been making all along had the original verification been accurate.

Section 96 of the Mississippi Constitution bars "retroactive raises" for public employees. The AG explained that the constitutional bar does not extend to back pay that was actually owed but never paid because of an administrative error. So if the Quitman School Board formally determines, on its minutes, that the underpayment was caused by an administrative error and that the teacher is owed back pay, the district may pay her the difference between what she received under contract and what she should have been paid. The opinion recommends contacting the State Auditor for guidance in making that factual determination.

What this means for you

For school districts and boards

The path here is procedural. Convene the board, look at the verification records before and after correction, and make a written finding spread on the minutes that (a) the original verification was an administrative error, (b) the salary actually owed under the existing salary scale was higher than what was paid, and (c) the difference is back pay, not a raise. Without that on-the-record finding, a payment risks running into Section 96. The opinion recommends contacting the State Auditor for guidance in making this factual determination.

For teachers and other school employees

If your placement on a salary scale depends on verifications from a previous employer and you later discover an error, the correction can in fact reach back. You will need the previous employer to issue a corrected verification, and your current district will need to formally find that the underpayment was due to an administrative error. The amount owed is the difference between what you were paid and what the salary scale would have produced with the correct experience number. This is not a raise the district is granting; it is back pay the district owes.

For school attorneys

Section 96 is the sticking point that defeats most retroactive-pay arguments in Mississippi public employment, so the entire memo your client needs is about framing the payment as back pay correcting an administrative error rather than as a discretionary salary adjustment. The AG's opinion strings together prior opinions (Brown 2017, Mosley 2014, Sturgeon 2006) confirming that the "administrative error" carve-out exists and that the existence of the error is a factual question for the board. The board must find, consistent with the facts and on its minutes, that the error was an administrative error and that back pay is owed. The opinion recommends contacting the State Auditor for guidance in making that factual determination.

Common questions

Doesn't Section 96 of the Mississippi Constitution prohibit paying a public employee for past work after the fact?

It prohibits retroactive raises. A retroactive raise is the board deciding now that a past period should have paid more under a higher rate. Back pay is different: it is paying out a sum that was already owed at the time but never reached the employee because of an error. The opinion treats correcting an erroneous years-of-service verification as the latter, not the former.

Why does the school board have to make a formal finding on its minutes?

Mississippi public boards "speak only through their minutes." A board's decision that something occurred (here, that an administrative error caused an underpayment) has no legal effect unless it is recorded in the board's minutes. Without that record, an auditor reviewing the payment later has nothing to confirm the constitutional carve-out applies.

What counts as an "administrative error"?

The opinion does not draw a hard line. The example here is a prior district's misidentification of the number of days the teacher was employed, which that district later corrected. The AG opinion (citing Sturgeon) treats whether an underpayment resulted from an administrative error as a factual question the school board must resolve after reviewing the board minutes and the superintendent's recommendations.

Should the district really call the State Auditor before issuing the payment?

The opinion recommends contacting the Office of the State Auditor for guidance in making the factual determination about whether the underpayment resulted from an administrative error.

Does this only apply to teachers, or to other public employees too?

The Section 96 framework applies to public employees generally. The same back-pay carve-out for administrative error has been recognized in MS AG opinions covering other employee categories. The fact pattern here is a teacher because the prior verification system is specific to school employment, but the constitutional analysis is not.

Background and statutory framework

The constitutional source for the bar on retroactive raises is Section 96 of the Mississippi Constitution. The AG opinions that interpret Section 96 in the back-pay context, cited in this opinion, are Brown (July 7, 2017), Mosley (Feb. 21, 2014), and Sturgeon (Aug. 14, 2006). The pattern across those opinions is consistent: a public board may pay back wages owed to an employee if and only if the board makes a formal finding, recorded on the minutes, that the underpayment resulted from an administrative error.

The teacher salary-scale piece is governed by the district's existing scale. Years-of-service verifications from prior districts feed the scale; if the verifications are wrong, the scale produces the wrong number; once the verifications are corrected, the scale produces the right number, and the difference is what the district had been underpaying.

Citations

• Section 96, Mississippi Constitution
• MS AG Op., Brown (July 7, 2017)
• MS AG Op., Mosley (Feb. 21, 2014)
• MS AG Op., Sturgeon (Aug. 14, 2006)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/08/R.Compton-July-31-2024-Retroactive-Employee-Compensation-Due-to-Misidentification-of-Number-of-Days-Employed.pdf

Original opinion text

July 31, 2024

Robert H. Compton, Esq.
Attorney, Quitman School District
Post Office Box 845
Meridian, Mississippi 39302-0845
Re:

Retroactive Employee Compensation Due to Misidentification of Number of Days Employed

Dear Mr. Compton:
The Office of the Attorney General has received your request for an official opinion. Background You provide in your request that during the 2023-2024 school year, the Quitman School District had an employee who was employed under contract as a licensed employee. The contract of employment was based upon the "years of employment verification" received from previous school districts. One of the school districts misidentified the number of days employed. That school district has now corrected its verification to actually show a percentage of time employed that would entitle the employee to an extra year of prior experience under the Quitman School District's existing teacher salary scale. Question Presented May the school district amend the teacher's contract to apply retroactively the existing teacher salary scale to include the extra year of actual experience, so as to make the employee whole (i.e., compensate her for the difference between the contract amount received and the amount that would have been paid had the prior school district submitted the correct verification for the missing school year)? Brief Response If the school district finds, consistent with the facts and spread upon the minutes, that the employee was underpaid due to an administrative error, the employee may be paid the difference between the salary she was paid and the salary the district finds that she is owed. For additional guidance regarding this matter, we recommend that you contact the Office of the State Auditor.

Applicable Law and Discussion

Section 96 of the Mississippi Constitution "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) (internal citations omitted). Thus, the Quitman School District would have to make the requisite finding, consistent with the facts and spread upon the minutes, that the prior school district's misidentification of the number of days the teacher was employed was an "administrative error" and that "back pay" is owed to the employee. 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/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General