Opinion Number

Dear Mr. Butler,

This office has received your opinion request in which you ask us to consider whether an employee who retires through the Optional Retirement Plan may be eligible for back pay for unused sick leave. Specifically, you ask the following question:

Are members who retire through the Optional Retirement Plan (ORP) eligible for pay for 25 days unused sick leave by the Teachers' Retirement System of Louisiana?

The ORP in question is set forth in LSA-R.S. 11:921, etseq. This plan was established to "provide retirement benefits to the participants while affording the maximum portability of these benefits to the participants." LSA-R.S.11:922. When an employee joins this optional plan, funded by private companies, the employee forfeits his membership in the Teachers' Retirement System and therefore forfeits any benefits he would receive under the Teachers' Retirement System.

Prior to joining the ORP, an employee must relinquish his rights against the state of Louisiana or the Teachers' Retirement System of Louisiana. LSA-R.S. 11:929 states, "Any person electing to participate in the ORP shall agree that the benefits payable to participants are not the obligations of the state of Louisiana or the Teachers' Retirement System or Louisiana . . ." This statute requires an employee to agree prior to joining the ORP, that his retirement benefits will not be derived from the state or the Teachers' Retirement System of Louisiana.

The Teachers' Retirement System allows an employee to receive compensation for up to 25 days of unused sick leave in accordance with LSA-R.S. 17:2149 and LSA-R.S. 17:3312. Both of these provisions are essentially supplemental benefits to the retiring employee. However, because an employee has elected to participate in the ORP, he has forfeited his ability or right to collect payment for the 25 days unused sick leave by the state via the Teacher's Retirement System.

Should you have any further questions, please contact this office.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: _______________________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL

KLK:ams

Date Received: January 28, 1996

Date Released: February 28, 1996

KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL