Opinion Number

Dear Mr. Bradley:

You ask this office to determine whether it is legally permissible for an indigent defender board to pay the board's contract lawyers on the first day of the month they are to work rather than the last day of the month.1

Judicial district indigent defender boards are governing bodies of political subdivisions of the state. As such, the district is subject to the constitutional limitations imposed by LSA-Const. Art. VII, Section 14 (A) (1974), providing:

(A) Prohibited uses. Except as otherwise provide by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private... (Emphasis added)

Compensation paid to a public employee in payment of salaries not yet earned is a prohibited donation of public funds. See Attorney General Opinions 87-522 and 89-594.

In Attorney General Opinion 91-589A, this office opined to the Bayou Lafourche Fresh Water District that a flat rate contract for legal services is not per se improper, although inadvisable, as long as no advance payments are made and the work is performed within the terms of the contract. The author of 91-589A concluded that "the hourly contract certainly is the preferred practice; for the flat rate contract to be lawful and not violate Art. 7 Sec. 14 of the La. Const. 1974, payments should not be made prior to the work being performed, [and] the work must be actually performed every month".

Thus, we conclude that the flat rate legal contracts paid by the district should not be paid at the first of the month, prior to the work being performed.

Should you have other questions in which we may provide assistance, please contact this office.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: __________________________ KERRY L. KILPATRICK ASSISTANT ATTORNEY GENERAL

KLK:ams

1 R.S. 15:151.2 (B) empowers the board as follows:

B. The board may set the terms of employment and compensation for a director and such staff as it determines to be necessary. Theboard may enter into contracts in accordance with law for thepurpose of maintaining and operating an office and performing thefunctions enumerated herein. (Emphasis added).