The following regulation confirms and reaffirms prior
construction of law, practice, and procedure of the Public Employees'
Retirement System of Mississippi (PERS) relative to the administration of
additional service credit for lawfully accumulated unused leave and for the
payment of unused leave for retirement purposes. Since May 15, 1984, Miss. Code
Ann. §
25-11-109
(1972, as amended) has allowed for the certification of accumulated unused
leave upon termination of employment or retirement on or after that date. Such
leave must be certified to PERS by the governing authority. Effective July 1,
1984, the state's leave law was amended to allow accumulated unused personal
and major medical leave of state and university employees to be certified to
PERS upon termination of employment.
Except as otherwise provided by law, PERS follows the
specific statutory provisions which authorize or limit the accrual of, or
payment for, leave applicable to state and university employees, public school
personnel, employees of counties, municipalities and other juristic entities,
elected officials, court reporters, etc. The following guidelines apply in the
accumulation, record keeping, and certification of leave by the
employer.
1.
Lawfully Adopted
Leave Policy
Any accumulated unused leave certified to PERS by the
employer must have been accumulated by the employee pursuant to a lawfully
adopted and written leave policy. Such policies may be found in statutory law,
as in the case of state employees and employees of the institutions of higher
learning, and/or in written policies adopted by the applicable governing body
of a public school, county, municipality, community college or other juristic
entity covered by PERS. Such policies, or the modification thereof, may not be
adopted or applied retroactively. Accumulated unused leave certified to PERS
pursuant to such policies may not exceed that which could have been accrued
under the state's leave law.
Accumulated unused leave certified to PERS by the employer
upon termination or retirement of the employee must be leave that is viable
under the terms of the policy and available for use by the employee in
accordance with the intended purpose, i.e., personal (vacation) leave or major
medical (sick) leave. Employers may not create or authorize leave to be accrued
for "retirement purposes only" nor may employers certify leave which expires
because it may not be carried forward from year to year. Further, employers may
not create and certify other categories of leave which are not available to and
certifiable on behalf of state employees. Leave certified to PERS must be
eligible for use or payment in the form of wages as any other leave under the
applicable policy to be certifiable to PERS.
2.
Requirement that Records Be
Maintained
Inherent in the certification of accumulated unused leave is
the requirement that accurate leave records be kept of such leave by the
employer. In the absence of appropriate records, no leave may be certified to
or granted by PERS. Leave certified to PERS by an employer must be based on
documented policies and records which exist at the time of certification of
such leave and which reflect any remaining lawfully accumulated unused leave.
Generally, once accumulated unused leave is properly
certified to PERS, it may not be later "decertified" by the employer or
reinstated by the same or another employer, except in the case of wrongful
termination where an employee is reinstated to employment back to the date of
termination with full compensation, rights, and privileges.
3.
Qualifying Leave that May Be
Certified to PERS
The state leave law provides that only accumulated unused
personal leave and major medical leave accrued under Miss. Code Ann.
§§
25-3-93
and
25-3-95
(1972, as amended) by the individual employee can be certified to PERS at the
time of termination or retirement. Accumulated unused personal or major medical
leave (or their equivalent) certified to PERS pursuant to other lawfully
adopted policies or statutes may not exceed that which could have been accrued
and certified under the state's leave law.
4.
Leave That May Not Be Certified to
PERS
a. Accumulated unused
compensatory leave or any other employer created category of leave other than
personal leave or major medical leave may not be certified to PERS for
additional service credit.
b. Leave
donated or transferred from one employee to another employee may not be
certified to PERS as unused leave of the recipient employee. The accumulation
of leave is personal to the individual employee. Only qualifying leave which
has actually been accumulated by and which remains unused by the individual
employee at termination of employment may be certified to PERS for service
credit.
c. Leave created, granted,
or available "for retirement purposes only" may not be certified to PERS. There
is no authority for the creation of a category of leave that is available for
"retirement purposes only." Leave provided to an employee which cannot be
carried over from year to year, and which expires at the end of each year, may
not be certified or "banked" for purposes of later certification to PERS.
d. Accumulated unused leave
associated with a refund of contributions may not be used for service credit.
Leave accumulated and unused during a period of employment for which
contributions are made to PERS and subsequently refunded to the terminated
employee becomes void when the refund is made. If the refund is repaid in full,
any accumulated unused leave associated with the reinstated service credit may
also be reinstated, provided that such leave is or has been certified to PERS.
If only a portion of the refund is repaid, the leave remains void and no part
of it may be used for additional service credit.
e. Leave accumulated with a governmental
employer outside the State of Mississippi, i.e., leave associated with
out-of-state service, or under the limited reemployment provisions as a retiree
under Miss. Code Ann. §
25-11-127
(1972, as amended), may not be certified to PERS for additional service credit.
Further, leave accumulated with any other non-covered employment, including
leave accumulated with an employer prior to the employer joining PERS or any
leave earned while participating in the Optional Retirement Plan or any other
plan administered by PERS, may not be certified to PERS for additional service
credit.
5.
When
Leave Can Be Certified to PERS
a.
Leave may be certified by the employer only upon termination of employment of
the employee. Termination is defined as a withdrawal from service that means a
complete severance of employment in state service by resignation, dismissal, or
discharge. Qualifying leave can be certified by the employer after termination
of employment of the employee so long as official policies and records exist to
support the certification.
Special
Circumstances:
i.
If unused leave accrued pursuant to a lawfully adopted leave policy of personal
employees of an out-going elected chancery or circuit clerk is not assumed by
the in-coming elected chancery or circuit clerk, such leave may be certified to
PERS on behalf of the employee by the out-going clerk. If so certified for
service credit, such leave may no longer be used by the employee while employed
under the new clerk.
ii. If unused
leave accrued pursuant to a lawfully adopted leave policy of employees of an
out-going elected district attorney is not assumed by the incoming elected
district attorney, such leave may be certified to PERS on behalf of the
employee by the out-going district attorney. If so certified for service
credit, such leave may no longer be used by the employee while employed under
the new district attorney.
iii.
Where an employee of a covered employer is elected to office with that same
covered employer without a break in service between the non-elected and elected
employment, all unused leave accumulated by the employee under a policy of the
employer prior to taking office as an elected official, must be certified to
PERS at the time of transition from the non-elected to the elected position.
b. If an employee
transfers from one state agency (including the institutions of higher learning)
to another without a break in service (i.e., without a lapse of one eight-hour
workday between the termination date at the old agency and effective date of
employment at a new agency), any unused leave is transferable to the state
agency to which the employee is transferring. Since July 1, 1998, major medical
and personal leave earned by employees are transferable between or among any
and all state agencies and senior colleges as well as community and junior
colleges.
c. If leave is eligible
for transfer to another covered employer, such leave should not be certified to
PERS.
6.
Conversion
of Accumulated Unused Leave from Hours to Days
a.
Conversion under policy where leave
accrual is no greater than that of the state's leave law.
The maximum accrual rates as provided under the state's
leave law is predicated on a normal eight- (8) hour workday and a five- (5) day
workweek. To determine the number of days to be certified to PERS, the number
of accumulated hours should be divided by eight (8). Only hours that equate to
whole days will be used to determine additional service credit upon retirement.
Any remaining hours or fraction of a day after accumulated unused leave from
all sources has been added together and converted into days will not be used in
computing the number of whole days for retirement credit.
b.
Conversion under policy where leave
accrual is greater than under the state's leave law.
If an employee (e.g., fireman or policeman) accrues leave at
a rate in excess of the maximum combined personal and major medical state
accrual rate as set forth in Miss. Code Ann. §§
25-3-93
and
25-3-95
(1972, as amended), the following formula shall be used to convert the
accumulated unused leave hours to days:
i. Divide the maximum monthly or annual
accrual rate under state's leave law by the employee's actual accrual rate
(i.e. actual number of hours accrued per month or per year under the applicable
policy) at the time of termination;
ii. Multiply the ratio found in Step (i) by
the total number of accumulated unused leave hours to find the adjusted
allowable hours;
iii. Divide the
result from Step (ii) by eight (8) to determine the appropriate number of
adjusted days that should be certified to PERS.
7.
Certification of Accumulated Unused
Leave
a. State law at Miss. Code Ann.
§
25-3-97(1)
(1972, as amended) imposes a duty upon agencies to maintain accurate records of
employee leave. Hence, all PERS reporting employers who have a leave policy
under which accumulated leave is or will be certified to PERS, have a like duty
to maintain accurate leave records. For service credit based on accumulated
unused leave to be granted for retirement purposes, there must be both a)
evidence of a policy established by law or a lawfully adopted leave policy,
spread upon the minutes of the appropriate authority or otherwise adopted by
formal resolution, and b) records documenting accumulated unused leave
remaining at termination of employment.
b. When accumulated unused leave is certified
to PERS by an employer on a form prescribed by the PERS Board of Trustees, such
leave is subject to audit by PERS and a copy of the actual leave records and
policy may be requested. Upon request, the employer must provide a copy of the
leave policy under which any leave is accrued, documentation as to when and how
the policy was adopted, and leave records.
c. No leave may be certified to PERS where an
employee terminated employment prior to May 15, 1984 (or July 1, 1984 in the
case of state and university employees), or the effective date of a formally
adopted leave policy, if later.
d.
Only accumulated leave, which has not been used or paid, may be certified. Any
lump sum payment of leave automatically reduces the number of accumulated
unused leave days which can be certified to PERS by the number of days for
which payment is made.
e. Service
credit for accumulated unused leave is not posted to a member's account until
the time of application for retirement, at which time all eligible accumulated
unused leave days certified from all employers are accumulated and converted to
retirement service credit. Accumulated unused leave may not be used to
determine minimum eligibility (i.e., a minimum of four (4) years of
contributing membership service in PERS for members who joined the System
before July 1, 2007, or a minimum of eight (8) years of contributing membership
services for members who joined the System on or after July 1, 2007,) for
service retirement, disability, or survivor benefits.
8.
Certification of Leave in Cases of
Dual Employment
a. Miss. Code Ann.
§
25-11-109(2)
(1972, as amended) provides in part that "... nor shall more than one (1) year
of service be creditable for all services rendered in any one (1) fiscal year;
. . ." As a result, no employee may be granted more than one day of creditable
service for each calendar day worked regardless of the number of hours worked
or number of positions held.
b.
Participants in PERS may be employed by two or more covered employers
simultaneously. In such case, an employee may accumulate leave under separate
leave policies. No employee may receive credit twice for vacation or sick leave
earned for the same period of employment. For retirement purposes, upon
termination of employment or retirement, a regular employee who has accumulated
leave under two or more separate leave policies for the same period of time may
elect to use accumulated unused leave credit from only one position. If an
employee is simultaneously covered in two positions, one as an elected official
and one as a regular employee under a leave policy, the individual as an
elected official will automatically receive credit under the special provisions
for elected officials.
9.
Additional Statutory Leave Granted at Retirement
a. Members of PERS who retire after July 1,
2010, shall receive credit for one-half day of leave for each full fiscal year
of membership service accrued after June 30, 2010, which shall not be prorated
for less than one (1) full fiscal year of service. Such additional leave
granted under Miss. Code Ann. Section
25-11-109(2)
(1972, as amended) shall be added to the lawfully credited unused leave
certified to PERS for which creditable service is allowed under Section
25-11-103(i).
b. Additional statutory leave granted at
retirement shall be calculated by PERS based on membership service accrued for
periods after July 1, 2010. Employers should not credit this leave to any
member, nor should an employer certify this additional leave to PERS at
retirement or termination of employment.
10.
Calculation of Leave for Elected
Officials
a. Prior to July 1, 1987,
there was no provision for additional service credit for elected officials
based on leave. An elected official is presumed available for official duties
at all times. Effective July 1, 1987, special statutory provisions for "elected
official leave" were enacted for those elected officials retiring on or after
July 1, 1987. (An elected official, such as a district attorney or elected
superintendent of education, does not accrue personal and major medical leave
pursuant to a leave policy for employees of the District Attorney or School
District. Such officials are covered by the "elected official leave" noted
below.)
b. For retirement purposes,
elected officials are entitled to additional service credit at retirement for
"elected official leave" calculated as follows:
i. For service prior to July 1, 1984, the
member shall receive credit for leave (combined personal and major medical) for
service as an elected official prior to that date at the rate of thirty (30)
days per year.
ii. For service on
and after July 1, 1984, the member shall receive credit for personal and major
medical leave beginning July 1, 1984, at the rates authorized in Miss. Code
Ann. §§
25-3-93
and
25-3-95
(1972, as amended), computed as a full-time employee.
Elected official leave for each period of continuous elected
official service should be calculated using the above guidelines. This
calculation applies whether the elected service was reported as membership
service, prior service, or purchased as non-covered or retroactive service. If
there is a break in service, the calculation should take the break in service
into account, and the accumulation for the subsequent period started again at
the lower accrual rate as provided in Miss. Code Ann. §§
25-3-93
and
25-3-95
(1972, as amended).
c. Where an employee is a regular employee in
one position but also serves as an elected official in another position, he/she
may not receive retirement credit for accumulated unused leave under both
positions at retirement. Where such service is simultaneous, special "elected
official leave" under the statutory provision applies automatically for that
period of time.
