Dear Mr. Vaughan:
You advise that you are currently employed by the Louisiana State Police in the classified position of Major in Patrol. You are approaching retirement from employment, and have accumulated hours of leave time which you would like to use prior to retiring.
After May 1, 2008, you state will no longer be considered an active employee of the Louisiana State Police. However, you will be retained on the payroll until June 30, 2008 for the purposes of using your accumulated leave time. Given these facts, you ask if any legal impediment exists which would prevent you from beginning work prior to June 30, 2008 as a contract employee for the Louisiana Highway Safety Commission.
An employee who is preparing for retirement and terminates all active service, but is retained on the payroll for the purposes of using his accrued leave, remains an employee of his agency until final separation from employment. See Attorney General Opinions 80-1173 and 87-208, copies attached. Because you continue to be on the state police payroll, you will remain a state employee until June 30, 2008, notwithstanding your inactive status prior to that date.
R.S. 36:4091 places the Louisiana Highway Safety Commission within the Department of Public Safety and Corrections, which is an executive branch agency pursuant to R.S. 36:4.2 R.S. 39:1498(A)(4) prohibits a state employee from contracting with state executive branch agencies, as follows: *Page 2
§ 1498. Approval of contract; penalties
(A). Before approving a proposed contract for professional, personal, consulting, or social services, the director of the office of contractual review or an assistant shall have determined that:
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(4) No current state employee will engage in the performance of the proposed contract except as provided for in LSA-R.S. 39:1498.2. (Emphasis added).
R.S. 39:1484(10) defines "employee" as "an individual drawing a salary from a governmental body". You will continue to be an employee as defined until June 30, 2008, and for this reason you are prohibited by R.S. 39:1498(A)(4) from engaging in a contract with the Louisiana Highway Safety Commission prior to June 30, 2008.
Further, the exceptions in R.S. 39:1498.2 only pertain to state employees who work as medical personnel, interpreters for the deaf, or are university faculty members. These exceptions are inapplicable in your situation.
In accord with our conclusion are Attorney General Opinions 99-5 (university state employee prohibited from contracting with the Louisiana State Board of Private Investigator Examiners, within the executive branch agency of the Department of Public Safety and Corrections); and Opinion 91-249 (state retirement board employees are precluded from participating in consulting or professional services contracts with state executive branch agencies).
After you are off the payroll and no longer a state employee, the prohibition of R.S. 39:1498(A)(4) will become inapplicable to you. However, because your contract will be with a commission of the Department of Public Safety and Corrections, your former employer, we suggest you seek an advisory ruling from the Louisiana State Ethics Commission, which will address any issues which might be raised under the Code of Governmental Ethics. You may address your inquiry to the Commission at 7434 Perkins Road, Suite B, Baton Rouge, Louisiana 70808, telephone: 225-765-2308.
Very truly yours,
JAMES D. "BUDDY" CALDWELL
ATTORNEY GENERAL
BY:___________________________
KERRY L. KILPATRICK
ASSISTANT ATTORNEY GENERAL
KLK:arg
1 R.S. 36:409(B) states:
§ 409. Transfer of agencies to Department of Public Safety and Corrections
B. The Louisiana Highway Safety Commission (R.S. 48:1351-48:1357) is transferred to the Department of Public Safety and Corrections and hereafter shall perform and exercise its powers, duties, functions, and responsibilities as provided in R.S. 36:801.
2 R.S. 36:4 provides for the structure of the executive branch of state government and states that ". . . . all offices, boards, commissions, agencies, and instrumentalities of the executive branch of state government. . . . . shall be allocated. . . . within the following designated departments . . ." and in section (A)(8) includes the Department of Public Safety and Corrections.