Opinion #6862

The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)

STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6862

July 28, 1995

CONSTITUTIONAL LAW:

The prohibition on retroactive compensation contained in Const 1963, art 11, Sec. 3.

COUNTIES:

The prohibition on retroactive compensation contained in Const 1963, art 11, Sec. 3.

Under Const 1963, art 11, Sec. 3, a county board of commissioners may not modify an approved compensation plan to retroactively increase the compensation of a county sheriff for prior years of service.

The prohibition on retroactive compensation contained in Const 1963, art 11, Sec. 3, does not apply to county employees.

A county prosecutor may, under MCL 141.431; MSA 5.3228(31), file a civil action for recovery of any public money disclosed to have been illegally expended in violation of Const 1963, art 11, Sec. 3.

Gary L. Walker

Marquette County Prosecuting Attorney

County Building

Marquette, MI 49855

You have asked three questions concerning the effect of Const 1963, art 11, Sec. 3, on retroactive compensation increases for public officers and employees and the procedure for recovering public money which may have been expended in violation of Const 1963, art 11, Sec. 3.

Your first question may be stated as follows:

Under Const 1963, art 11, Sec. 3, may a county board of commissioners modify an approved compensation plan to retroactively increase the compensation of a county sheriff for prior years of service?

A county board of commissioners is empowered under MCL 45.401; MSA 5.911, to set the compensation of the county sheriff unless the county has a county officers compensation commission that is vested with that responsibility. From the information you have provided, it appears that Marquette County does not have a county officers compensation commission and that compensation for elected officers, including the county sheriff, are determined and fixed by the Marquette County Board of Commissioners (Board).

Based on the information you have provided, the Board, on October 13, 1992, adopted a budget which included a five-year, step-increase compensation plan for certain elected officials, including the county sheriff. From 1992 to 1994, the sheriff was compensated for services rendered in accordance with the approved compensation plan, although he continued to have discussions with subcommittees of the Board regarding an increased salary for his position.

In late 1994, a subcommittee of the Board and the county sheriff agreed to use a point-factoring system to determine the appropriate compensation for the sheriff position. Under the point-factoring system, the sheriff position appeared to be underpaid. Thus, the subcommittee recommended that the Board authorize an increase in the sheriff's compensation and pay the sheriff a lump-sum payment of $12,700, which represented the difference between what the sheriff was paid between 1992 and 1994, and what he would have been paid had the position been reclassified under the point-factoring system in 1992. The Board adopted the recommendation of the subcommittee and authorized a prospective increase in the sheriff's compensation. In addition, it approved a lump-sum payment to the sheriff in the amount of $12,700.

Const 1963, art 11, Sec. 3, provides:

Neither the legislature nor any political subdivision of this state shall grant or authorize extra compenstion to any public officer, agent or contractor after the service has been rendered or the contract entered into.

A county sheriff is a constitutional public officer elected by the people of the county under Const 1963, art 7, Sec. 4. OAG, 1989-1990, No 6643, p 332 (June 14, 1990), addressed the effect of Const 1963, art 11, Sec. 3, on public officers. That opinion concluded that public officers may not receive compensation increases for services they have already performed unless those compensation increases were authorized before the services were performed. The focus of the prohibition contained in Const 1963, art 11, Sec. 3, as it relates to public officers, is on whether the "extra compensation" is granted or authorized "after the service has been rendered."

OAG, 1979-1980, No 5731, p 848, 852, (July 1, 1980), concluded:

Once a rate of compensation has been determined for a contractual period, and the public officer subsequently performs services during such period, he or she may not, thereafter, be granted extra compensation for such services on a retroactive basis, regardless of contractual language to the contrary, since any payment of extra compensation for services previously rendered is constitutionally impermissible. Attorney General v Board of Education of the City of Detroit, supra.

The information you have provided reveals that a rate of compensation for the sheriff position was adopted by the Board on October 13, 1992, and the sheriff was paid for services rendered under that schedule. Although the sheriff and a subcommittee of the Board continued discussions from 1992 to 1994, no authorization by the Board to increase compensation for the sheriff's position was adopted by the Board until late 1994. Under these circumstances, it must be concluded that although the Board properly authorized an increase in compensation for the sheriff position prospectively in 1994, it could not, consistent with Const 1963, art 11, Sec. 3, grant additional compensation to the sheriff for services performed between 1992 and 1994 before the date the compensation increase was authorized.

It is my opinion, therefore, in answer to your first question, that under Const 1963, art 11, Sec. 3, a county board of commissioners may not modify an approved compensation plan to retroactively increase the compensation of a county sheriff for prior years of service.

Your second question may be stated as follows:

Does the prohibition on retroactive compensation contained in Const 1963, art 11, Sec. 3, apply to county employees?

OAG, 1989-1990, No 6643, supra, also concluded that the "prohibition, however, [in Const 1963, art 11, Sec. 3] does not extend to employees." Id. at 332. OAG, 1973-1974, No 4818, p 155 (June 11, 1974), traced the history of approval by the Constitutional Convention of 1962 of Const 1963, art 11, Sec. 3, as Committee Proposal 62, and noted the deletion of the word "employee" that appeared in Const 1908, art 16, Sec. 3, the predecessor provision to art 11, Sec. 3. That opinion concluded "[t]he clear intent of the Constitution's framers was to exempt all government employees" from the prohibition against retroactive pay increases. Id. at 158.

It is my opinion, therefore, in answer to your second question, that the prohibition on retroactive compensation contained in Const 1963, art 11, Sec. 3, does not apply to county employees.

Your final question is what can the county do to recover a payment determined to have been made in violation of Const 1963, art 11, Sec. 3.

Provision is made in MCL 141.431; MSA 5.3228(31), for the county prosecuting attorney to file a civil action "for the recovery of any public moneys, disclosed by any examination to have been illegally expended." OAG, 1985-1986, No 6329, p 188, 191 (December 20, 1985).

It is my opinion, therefore, in answer to your final question, that a county prosecutor may, under MCL 141.431; MSA 5.3228(31), file a civil action for recovery of any public money disclosed to have been illegally expended in violation of Const 1963, art 11, Sec. 3.

Frank J. Kelley

Attorney General