December 2023

“Contributions to retirement plans are a form of deferred compensation.
Consequently, we find that the plaintiff’s claim is one
for compensation for services rendered. The applicable prescriptive
period, then, is found in La. C.C. Art. 3494, which provides
that an action for the recovery of compensation for services rendered
is subject to a liberative prescription of three years.”
In Deshotel v. Village of Pine Prairie, 09-670 (La. Ap. 3Cir.
12/9/09), 26 So.3d 975, this court addressed a similar controversy
involving a Pine Prairie police officer who, in 1991,
was misinformed about his MPERS eligibility and was consequently
never enrolled in the state-wide retirement plan. This
court specifically found that Pine Prairie officials breached a
duty to the plaintiff by giving him inaccurate information,
but that, nevertheless, his claim was subject to the threeyear
prescriptive period set forth in La. Civ. Code Art. 3494.
Therefore, we held that when “Deshotel filed suit in June 2007,
the only claims that had not been prescribed were those from
June 2004 forward.” Similarly, in Fishbein, the Supreme Court
held that the three-year prescriptive period governing a
state employee’s cause of action against her employer for
unpaid retirement contributions began to run upon receipt
of the first paycheck in 1980, which did not include the full
contribution. Consequently, the Fishbein plaintiff’s August
2000 suit was prescribed as to all claims arising prior to August
1997. Accordingly, the trial court found that since the
last plaintiff’s date of enrollment occurred in 2002 and this
suit was not filed until 2007, beyond the three-year prescriptive
period, the claim has prescribed.
This court is cognizant that the plaintiffs have suffered a significant
loss, but we are restricted by the law, the facts, and
the standard of review. Therefore, after a review of the record
in light of the applicable law, we do not find that the
trial court was clearly wrong in her determination that the
plaintiffs knew or should have known by the date of their enrollment
in the retirement system and accordingly, the case
is prescribed.
What carries more weight - Attorney General Opinions or
case law?
Attorney General Opinions, though highly regarded, are Attorney
General Opinions or advisory only, and not binding.
We have recognized them as persuasive authority, particularly
where no cases on point exist. At least one Attorney
General Opinion recognizes the potential impact of the
previously cited cases of Fishbein, Deshotel, and Coker on
MPERS contributions.
We hope that this analysis of the MPERS FAQs will assist all
Louisiana municipalities in their individual assessment of
the financial exposure brought about by the MPERS litigation
situation. As previously mentioned, defense services
are provided to LMRMA Liability Fund members which are
covered for Public Officials E&O coverage at no cost, under a
reservation of rights.
If your municipality has been impacted by the MPERS litigation
and you are provided E&O coverage through RMI, please
feel free to contact me directly at 1-800-843-0931 or pcronin@rmila.com.
RMI – Providing risk and coverage related services to
Louisiana municipalities for over 35 years!
Sincerely,
Patrick Cronin, CPCU, AIC, AIM, AAI, ARM, CWCP
General Manager – Risk Management, Inc.
LMR | DECEMBER 2023 Page 27