Dear Ms. Dees:
You have requested an opinion of the Attorney General on several issues involving the Registrar of Voters Employees' Retirement System ("ROVERS"). Specifically, you want to know if compensation for services rendered to perform election duties and responsibilities associated with early voting is eligible for contribution to ROVERS. If so, you want to know if La.R.S. 18:1400.8 mandates the payment of such contributions to ROVERS as appropriated to the Secretary of State for that purpose.
We start our analysis by looking at ROVERS. The laws creating and governing ROVERS can be found at Chapter 6 of Title 11, Consolidated Public Retirement Systems.1 ROVERS was established in nineteen hundred and fifty-five, and it provides retirement allowance and other benefits for the registrars of voters, their deputies, and their permanent employees in the parish. See La.R.S. 11:2032. Membership in the system is further explained in La.R.S. 11:2051.
La.Const. art. X, § 29(E)(1) requires that the legislature establish a particular method of actuarial valuation to be employed for each state or statewide public retirement system, which includes ROVERS. As such, many of the laws found in Chapter 2 of Title 11 are applicable to the method of financing for ROVERS. Additional laws on the method of financing for ROVERS can be found in Part VII of Chapter 6 at La.R.S. 11:2131 through La.R.S. 11:2144. For example, the *Page 2 amount of employee contributions is discussed in La.R.S. 11:2132, and provides in pertinent part that:
B. Each employer shall cause to be deducted from the salary of each member on each and every payroll of such employer for each and every payroll period seven per centum of his earnable compensation. In determining the amount earnable by a member in a payroll period, the board of trustees may consider the rate of annual compensation payable to such member on the first day of the payroll period as continuing throughout such payroll period, and it may omit deduction from compensation for any period less than a full payroll period, to facilitate the making of deductions it may modify the deduction required of any member by such an amount as shall not exceed one-tenth of one per centum of the annual compensation upon the basis of which such deduction is to be made.
(Emphasis added.) See also La.R.S. 11:61-La.R.S. 11:62.
Employer contributions also may be assessed and collected and are discussed at La.R.S. 11:2142. See also La.R.S. 11:102-11:103. It is important to note that "employer" for purposes of ROVERS shall mean the registrar of voters of any parish in the State of Louisiana, the State of Louisiana, the police jury or any other governing body of a parish which employs and pays registrars of voters. See La.R.S. 11:2031 (11). "Employer" can also mean ROVERS. Id.
As it relates to your first inquiry, you want to know if compensation earned for services rendered in performing election duties and responsibilities associated with early voting is eligible for contribution to ROVERS. It is clear from the language of La.R.S. 18:1309 that early voting is mandatory under Louisiana Law and that it is mandatory for the registrar of voters to maintain extra hours during the time period of early voting. Specifically, La.R.S. 18:1309 provides in pertinent part that:
§ 1309. Early voting application and early voting
A. (1) The periods for conducting early voting application and early voting shall be from fourteen days to seven days prior any scheduled election.
(2) During the early voting period, the registrar shall maintain regular office hours, remaining open from 8:30 a.m. to 6:00 p.m. Monday through Saturday. Early voting on the last day of voting with terminate when all persons who are in line to vote *Page 3 at the close of the regular office hours of the registrar's office, as provided in this Paragraph, have been allowed to vote.
(Emphasis added.)
You also informed our office that the services rendered to perform election duties associated with early voting are included in the regular pay of employees. The language of La.R.S. 11:2132 which is outlined above and which deals with employee contributions mandates deductions from the salary of each member on each and every payroll of such employer for each and every payroll period for contribution to ROVERS. This mandatory deduction for contribution to ROVERS would include payments made for early voting services rendered by employees. This is especially evident, since you have indicated that early voting services are included in the regular pay of employees.
Even in the event that early voting services performed by registrar of voters' employees are considered overtime or extra time, there is no prohibition from including these services for retirement system contribution because the duties associated with early voting are being performed as part of the employee's regular and mandated duty. This determination is consistent with the practices of other retirement systems. For example, La.R.S. 11:233 which governs earnable compensation for Firefighters Retirement System, Sheriffs' Pension and Relief Fund, Parochial Employees' Retirement System of Louisiana, and Assessors Retirement Fund, provides that earnings, earned or earnable compensation shall not include overtime unless it is required to be worked in the employee's regular tour of duty.2 ROVERS is silent as to overtime and has no express provision limiting the amount of overtime earnings that can be used in the computation of earnings for purposes of retirement.
Therefore, in response to your first inquiry, it is the opinion of this office that compensation earned for services rendered by the registrar of voters' and its permanent employees in performing election duties and responsibilities associated with early voting is eligible for contribution to ROVERS.
As it relates to your second inquiry, you want to know if the Secretary of State is responsible for the contribution to ROVERS, out of the money appropriated to it for early voting expenses, for services rendered by registrar of voters' employees in performing election duties and responsibilities associated with early voting. State law provides for a method of payment for expenses incurred by the registrar of voters conducting early voting pursuant to La.R.S. 18:1400.8. Specifically, La.R.S. 18:1400.8 provides in pertinent part that: *Page 4 1400.8 Expenses incurred by registrars of voters conducting early voting; payment by secretary of state Election expenses incurred by a registrar of voters and his permanent employees to perform election duties and responsibilities associated with early voting on any day during the week between 4:30 p.m. and the time that early voting terminates that day and on any Saturday on which early voting is conducted shall be paid by the state from funds appropriated to the secretary of state for that purpose.
(Emphasis added.)
The employer contribution into ROVERS for the compensation earned by the registrar of voters' employees for services rendered during early voting is a legitimate expense incurred by the registrar of voters. Moreover, our review of what constitutes an "employer" under ROVERS, which is discussed in greater detail above, showed that an "employer" also included the State of Louisiana. Arguably, the Secretary of State would be the State of Louisiana and could be considered an "employer" for purposes of contributions due to ROVERS.
Thus, it is the opinion of this office that the Secretary of State is responsible for the payment of the employer contribution to ROVERS, out of the money appropriated to it for early voting expenses, for services rendered by registrar of voters' employees in performing election duties and responsibilities associated with early voting because this is an expense incurred by the registrar of voters and his permanent employees.
We trust that this information sufficiently answers your inquiry. If we can be of further assistance, please do not hesitate to contact us.
With Best Regards,
JAMES D. "BUDDY" CALDWELL ATTORNEY GENERAL
BY:__________________________ Angelique Duhon Freel Assistant Attorney General
JDC:ADF
1 ROVERS was redesignated into Title 11 from Title 18, attendant citation and capitalization changes were made, and paragraphs were reordered, pursuant to Acts 1991, No. 74.
2 Please note that La.R.S. 11:1902, which deals with the Parochial Employees' Retirement System, limits the amount of overtime earnings that can be used in the computation of earnings for purposes of retirement.