Scheer, 040116 NEAGO, AGO 16-8

• Case Date: April 01, 2016
• Court: Nebraska

Senator Jim Scheer AGO 16-8 No. 16-008 Nebraska Attorney General Opinions State of Nebraska office of the Attorney General April 1, 2016          SUBJECT: Constitutionality of LB 830—Requiring Cash Payouts of Accrued Vacation Leave Which Exceeds Maximum Limits in Lieu of Forfeiture          REQUESTED BY: Senator Jim Scheer, Nebraska State Legislature          WRITTEN BY: Douglas J. Peterson, Attorney General, Leslie S. Donley, Assistant Attorney General          You have requested an opinion from this office regarding the constitutionality of legislation "that would provide state employees with additional compensation in the form of payment for unused vacation leave that exceeds statutory limits in certain circumstances." You indicate that the current version of Legislative Bill 830^[1] requires a payout in those instances where an employee has made a "reasonable written request" to use the leave prior to December 31, but was denied the ability to do so by the employing agency. You further state that LB 830 would apply to all state employees except those employed in the legislative and judicial branches.          QUESTIONS PRESENTED          Your first question deals with the applicability of LB 830 to "employees of other constitutional officers." You indicate that the Department of Administrative Services has the authority to adopt and promulgate rules and regulations governing the pay and hours of state employees within the State Personnel System. However, you point out that Neb. Rev. Stat. § 81-1316 (2014) exempts from the State Personnel System the personnel of constitutional offices and other at-will, discretionary agency heads.^[2]          Your second question relates to LB 830 in the context of the State Employees Collective Bargaining Act, Neb. Rev. Stat. §§ 81-1369 to 81-1388 (2014) ("Act"). You indicate that under the Act, the executive branch is authorized to negotiate terms and conditions of employment, including compensation and vacation leave, with union contract-covered employees. However, you note that "the Legislature did not retain a right to approve or an ability to modify the resulting collectively bargained contracts." You state that you have been advised that the proposed legislation would conflict with the state employee bargaining agreements currently in place.          You have posed the following questions:

1. May the Legislature constitutionally mandate payout of unused vacation leave for the discretionary employees of these constitutional or elected officers or employees?

2. Whether LB 830 would violate or conflict with portions of the State Employees Collective Bargaining Act?

         LB 830          The proposed language in LB 830 would add a new subsection to Neb. Rev. Stat. §81-1328(2014), as follows:

(7) It is the responsibility of the head of an employing agency to provide reasonable opportunity for a state employee to use rather than forfeit accumulated vacation leave. If a state employee makes a reasonable written reguest to use vacation leave before the leave must be forfeited under this section and the employing agency denies the reguest, the employing agency shall pay the state employee the cash equivalent of the amount of forfeited vacation leave, that was reguested and denied. Such cash payment shall be made within thirty days after the reguested and denied vacation leave is forfeited under this section. Such cash payment shall be considered compensation for purposes of a state employee's retirement benefit in a defined contribution or cash balance benefit plan administered by the Public Employees Retirement Board but shall not be considered compensation for purposes of a state employee's retirement benefit in any other defined benefit plan administered by the Public Employees Retirement Board. In determining whether a state employee's request to use vacation leave is reasonable, the employing agency shall consider the amount of vacation leave requested, the number of days remaining prior to forfeiture during which the state employee may take vacation leave, the amount of notice given to the employing agency prior to the requested vacation leave, any effects on public safety, and other relevant factors. This subsection shall not apply to state employees who are exempt from the State Personnel System pursuant to subdivisions (1,)(g), and (h) of section 81-1316.

         Final Reading Version of LB 830, section 2, pp. 16-17.          DISCUSSION          You have inquired as to whether the Legislature can impose the proposed legislation on the "employees of other constitutional officers." Although not expressly articulated in your opinion request letter, we believe your first question relates to whether the proposed legislation violates the separation of powers provision in Neb. Const, art. II, § 1. That provision states, in pertinent part:

The powers of the government of this state are divided into three distinct departments, the legislative, executive, and judicial, and no person or collection of persons being one of these departments shall exercise any power properly belonging to either of the others except as expressly directed or permitted in this Constitution.

         "In other words, the Nebraska Constitution prohibits one branch of government from encroaching on the duties and prerogatives of the others or from improperly delegating its own duties and prerogatives." State ex ret. Shepherd v. Nebraska Equal Opportunity Com'n, 251 Neb. 517, 524, 557 N.W.2d 684, 690 (1997). "This aspect of the separation of powers clause serves as the beam from which our system of checks and balances is suspended." Id.; State ex rel. Spire v. Conway, 238 Neb. 766, 472 N.W.2d 403 (1991). "The federal separation of powers principle is inferred from the overall structure of the U.S. Constitution. In contrast, Neb. Const, art. II, § 1, prohibits one department of government from...