Alabama Advisory Opinions December 13, 1995: AGO 96-00068 (December 13, 1995)

Advisory Opinion Text

Honorable Jimmy H. Baker

Acting Director of Finance

State of Alabama

Department of Finance

105-N State Capitol

Montgomery, Alabama 36130

Compensation - Elections -Term of Office - Offices and Officers

Discussion of the terms of office and holdover provisions of state laws relating to the office of Chief Justice of the Supreme Court and the State Treasurer.

Dear Mr. Baker:

This letter is in response to your request for an opinion regarding the payment of salaries of the Chief Justice and Treasurer. You then asked the following three questions:

QUESTION 1

May the State Comptroller issue warrants for the salaries of the Chief Justice and State Treasurer retroactively to January 16, 1995, based on proper documentation submitted by the respective offices pursuant to the referenced order?

FACTS AND ANALYSIS

On September 29, 1995, the U.S. District Court for the Southern District of Alabama enjoined the State of Alabama to award Chief Justice Hooper and Treasurer 8axley all emoluments and benefits of their offices, including compensation, nunc pro tunc , January 16, 1995. On October 13, 1995, the U.S. Court of Appeals for the Eleventh Circuit affirmed and issued the mandate instanter.

CONCLUSION

The State Comptroller must pay the salaries of Chief Justice Hooper and Treasurer Baxley. The judgment of the federal court is final, and the State of Alabama did not appeal the judgment.

QUESTION 2

May such compensation be paid from funds encumbered for this purpose from FY 1995 appropriations, and/or FY 1996 appropriations to the respective offices?

FACTS AND ANALYSIS

Code of Alabama 1975, §41-4-93 provides:

"All unencumbered balances of all appropriations shall revert to the state treasury at the end of the fiscal year and to the credit of the general fund or the special fund from which the appropriation or appropriations were made."

As stated in the opinion of the Attorney General to Mr. Thomas R. DeBray, Interim Co-Director, Department of Environmental Management, dated September 20, 1982, A.G. No. 82-00572, regarding § 41-4-93:

"The purpose of the law is to forbid state departments and agencies from carrying forward unspent and unencumbered appropriations. An agency cannot 'creatively' encumber all of its unspent funds for next year's normal operational expenses. For example, an agency could not 'encumber' its funds by contracting with its personnel for their future salaries."

Generally, funds for salaries cannot be encumbered and paid in a subsequent fiscal year. However, in the case at hand, the funds were encumbered for salaries due to the litigation in Roe v. State of Alabama , CV-94-885-AH-S (S.D. Ala. 1995) and as a result of the opinion of the Attorney General to Honorable Jimmy H. Baker, Acting Director of Finance, dated February 1, 1995, A.G. No. 95-00108.

In the court order in Roe , Judge Alex Howard ordered that Mr. Hooper be sworn in nunc pro tunc , January 16, 1995. A stay of his order was requested with the Eleventh Circuit in Atlanta and with the United States Supreme Court and has been denied. The order of the court must be obeyed and the salaries should be paid as directed.

It must also be noted that the salaries for the officials in question which accrued during the 1994-95 fiscal year may be paid out of funds encumbered during that fiscal year for that purpose. However/ salaries for these officials that have accrued during the 1995-96 fiscal year which began October 1, 1995, must be paid from funds appropriated for the 1995-96 fiscal year.

CONCLUSION

Under the specific and limited facts in the case at hand, compensation which accrued during the 1994-95 fiscal year for Chief Justice Perry O. Hooper and State Treasurer Lucy Baxley can be paid from funds encumbered for this purpose from FY 1995 appropriations.

QUESTION 3

The previous Chief Justice and State Treasurer were each paid for one pay period past January 16, 1995. Does the State Comptroller or Director of Finance have a legal obligation to seek repayment of such salaries or compensation?

FACTS AND ANALYSIS

This office is not aware of any authority that obligates the Department of Finance to seek repayment of compensation to a de facto official who held office when the courts held that he was not lawfully entitled to occupy such office.

CONCLUSION

The State Comptroller and Department of Finance do not have a legal obligation to seek repayments of the monies paid to E.C. Hornsby and George C. Wallace, Jr., after January 16, 1995.

I hope this sufficiently answers your questions. If our office can be of further assistance, please contact Bill Pryor of my staff.

Sincerely,

JEFF SESSIONS, Attorney General.

JAMES R. SOLOMON, JR. Chief, Opinions Division.