Somervell County hasn't been breaking the law, they're just *Inconsistent* w regard to payroll checks (February 2019) Somervell County Salon-Glen Rose, Rainbow, Nemo, Glass....Texas
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Somervell County hasn't been breaking the law, they're just *Inconsistent* w regard to payroll checks (February 2019)
8 May 2019 at 4:58:33 PM
Interesting discussion from the Feb 11 2019 Somervell County Commissioners Court meeting. The question coming up was whether Somervell County Commissioners Court was legally required to vote on payroll disbursements before payroll checks go out or could issue them without a vote. The answer is no, unless the Texas Legislature changes a law that allows smaller populations to simply issue payroll and other disbursements without the county commissioners explicitly voting on them first. From a practical standpoint, following the law, which also has a Texas Attorney General opinion associated with the practice saying no, requires that a commissioners meeting be scheduled enough in advance to also meet TOMA requirements of agendas being posted 72 hours in advance of a meeting.
There is a Texas law 113.047 which talks about disbursements for salaries or expenses in counties with population of 190,000 more more. Somervell County has far less than that in population. Back on August 8, 2017, Ken Paxton, Texas Attorney General, issued an opinion KP-0160 regarding whether a county treasurer could be authorized to pay certain types of bills and claims before presenting the claims or bills to commissioners court. Paxton said no. Here is most of that opinion.
Dear Mr. Weeks: Opinion No. KP-0160 Re: Whether a commissioners court may enter an order authorizing the treasurer to pay certain types of claims and bills prior to presenting the actual claims or bills to the commissioners court (RQ-0150-KP) You ask on behalf of the treasurer and the auditor of Walker County whether a commissioners court may enter an order authorizing the treasurer to pay certain types of claims and bills prior to presenting the actual claims or bills to the commissioners court. 1 You state that the county's biweekly payroll schedule does not always coincide with the commissioners court's regular meetings, held the second and fourth Mondays of each month, such that the commissioners court may timely approve payroll at a regular meeting. Request Letter at 1-2. You also tell us the county auditor proposed an order to provide for expedited payment to timely meet payroll, ensure continuity of service, and avoid late fees for credit cards. Id. at 1.
The proposed order recites that a prior order of the commissioners court waived the requirement that all claims be approved in open court. Id. at Exhibit "A." Under the proposed order, the commissioners court would provide blanket approval for the following items before they accrue:
• Payroll, related employee deductions.and benefits and payroll taxes
• Debt Service Payments
. • Payments to the State and Federal Government and their agencies
• Orders of District Courts and County Court at Law • Grant related payments to meet grant timing deadlines
• Utility and telecommunications services to assure continuation of service
• Fuel cards to assure continuation of service
• Credit card bills that are paid by drafts initiated by the Credit Card Company Id.
Such claims could be paid "after the invoice/claim has been presented with appropriate documentation and authorizations by department heads and elected officials and following approval thru the audit process." Id. Thereafter, the treasurer would present the commissioners court with a report of the bills paid. Id. The treasurer and auditor stated that without the proposed order, they will ask the commissioners court for twenty-five special sessions throughout the year to be held on Wednesdays rather than on Mondays. Id. at 2. You ask whether the proposed order complies with the treasurer's duties under section 113.041 of the Local Government Code and the commissioners court's duties under sections 115.021 and 115.022. Id.
The Local Government Code specifies the method to approve claims against the county and to disburse county funds to pay the claims. Under section l 13.041(a) of the Local Government Code, the county treasurer must disburse county funds "as required by law and as the commissioners court may require or direct." TEX. Loe. Gov'T CODE§ 113.04l(a). The treasurer may not disburse county money without an order of an authorized officer. Id. § 113 .041 ( c ). Under the Local Government Code, the treasurer has no authority to approve claims and may not pay claims without commissioners court approval. See Tex. Att'y Gen. Op. No. H-171 (1973) at 4-5.
Section 115.021 requires the commissioners court to "audit and settle all accounts against the county and shall direct the payment of those accounts." TEX. Loe. Gov'T CODE§ 115.021. Further, the commissioners court must examine county financial accounts and reports, compare them with accompanying vouchers, and correct the accounts and reports as appropriate. Id. § 115.022(a). These statutes impose a duty on the commissioners court to examine and approve or disapprove claims against the county. Id. §§ 115.001-.022; see also Navarro Cty. v. Tullos, 237 S.W. 982, 987 (Tex. Civ. App.-Dallas 1922, writ ref d). County funds may not be expended without the commissioners court's approval. Smith v. McCoy, 533 S.W.2d 457, 459 (Tex. Civ. App.-Dallas 1976, writ dism'd).
A commissioners court transacts a county's business as its principal governing body and is a "governmental body" subject to the Open Meetings Act. TEX. Gov'T CODE§ 551.001(3)(B); Comm 'rs Court v. Agan, 940 S.W.2d 77, 79 (Tex. 1997). Generally, all of its meetings to discuss public business or take formal action must be open to the public. TEX. Gov'T CODE §§ 551.001(4)(A), .002. Thus, a prior opinion of this office concluded that under the Open Meetings Act, "a claim, invoice, or bill must be approved by a commissioners court at a meeting held pursuant to the Act." Tex. Att'y Gen. Op. No. JC-0307 (2000) at 1; see also Swaim v. Montgomery, 154 S.W.2d 695, 696-97 (Tex. Civ. App.-Amarillo 1941, writ ref d) (stating that commissioners do not act individually; rather, "[t]hey meet as a court and transact the county business in open session"). The commissioners court lacks the authority to "waive" its duty to order payment of claims only in an open meeting. See id.; see also Acker v. Tex. Water Comm 'n, 790 S.W.2d 299, 300 (Tex. 1990) (requiring "exact and literal compliance with the terms" of the Act); Tex. Att'y Gen. Op. No. GA-0412 (2006) at 2 (stating that a governmental body may issue an order concerning meetings only if they "are consistent with the Texas Open Meetings Act and other laws applicable to the governing body").
Thus, the pertinent issue is whether the commissioners court may approve claims before they accrue, to be paid as the claims are presented with "appropriate documentation and authorizations" and approved through the county audit process. Request Letter at Exhibit "A." The proposed order does not expressly address who determines whether a particular claim satisfies requirements to qualify for payment, implicitly leaving the decision to the treasurer or the auditor. See id. Thus, such an order would not constitute the examination and approval the commissioners court must undertake under the Local Government Code; rather, the order would delegate the commissioners court's oversight responsibilities to the treasurer and the auditor. A commissioners court may not delegate its powers requiring the exercise of judgment and discretion absent a statute expressly authorizing it to do so. See Guerra v. Rodriguez, 239 S.W.2d 915, 920 (Tex. Civ. App.- San Antonio 1951, no writ); see also Tex. Att'y Gen. Op. Nos. KP-0052 (2015) at 2 n.2 (determining that a commissioners court may not delegate its budget authority), JC-0370 (2001) at 3 (determining that a "commissioners court has a nondelegable duty to review county payrolls and to issue warrants"). 2 Accordingly, a commissioners court cannot delegate to the county treasurer or the auditor the commissioners court's duty and authority to approve payment of county claims and payroll. See Smith, 533 S.W.2d at 459 (commissioners court's duties to examine and direct payment of claims are nondelegable duties); Tex. Att'y Gen. Op. Nos. JM-192 (1984) at 5 (determining that payment of salaries to county employees requires commissioner court approval); H-977 (1977) at 6 (determining that county commissioners court cannot delegate its authority to audit and settle claims against the county); 0-5049 (1943) at 2-3 (determining that commissioners court may not in a standing order authorize the county auditor to pay officers and employee salaries and utility bills). Thus, the proposed order authorizing the treasurer to pay certain types of claims and bills prior to presenting the actual claims or bills to the commissioners court does not comply with the commissioners court's duties under sections 115.021 and 115.022 of the Local Government Code.
Finally, you ask whether the commissioners court "may approve payment of the claims and bills described in the proposed order in a special session held on a day other than when the Court usually meets for its regular session." Request Letter at 2. You advance no reason why the commissioners court's authority to approve a claim or other disbursal is any less for a meeting called for a day other than the commissioners court's regular meeting day. Section 81.005 of the Local Government Code requires commissioners courts to "designate a day of the week on which the court shall convene in a regular term each month," but the section also authorizes special meetings. TEX. Loe. Gov'T CODE§ 81.005(a), (g). The treasurer must make a financial report, exhibit the treasurer's books and records, and submit vouchers for audit and approval "[a]t least once a month at a regular term of the commissioners court," implying that claims may be presented for approval more often. Id. § 114.026. Provided it complies with any statute applicable to the particular subject matter, a commissioners court may review and direct payment of payroll and claims at a meeting called for a day other than the commissioners court's regular meeting day. 3
NOTE: two footnotes 2For counties with a population greater than 190,000, the Local Government Code authorizes county officers to issue warrants against the salary fund of the county to pay salaries and draw checks on the county treasurer to pay salaries. TEX. Loe. GOV'T CODE §§ 113.047, 154.043. You inform us that Walker County's population is approximately 67 ,861. Request Letter at 1. 3While the auditor and the treasurer assert that more commissioners court meetings are needed to meet various payment deadlines, it may be possible to adjust the county's payroll and other payment schedules to more closely conform to the commissioners court's regular meeting schedule.
Under sections 113.041, 115.021, and 115.022 of the Local Government Code, the commissioners court must approve claims, and the treasurer and auditor do not have the authority to pay claims without the commissioners court's approval. A commissioners court cannot delegate to the county treasurer the commissioners court's duty and authority to approve payment of county claims. Provided it complies with any statute applicable to the particular subject matter, a commissioners court may review and direct payment of payroll and claims at a meeting called for a day other than the commissioners court's regular meeting day
Now, as you consider the following, realize that AG opinions don't in any way "rule" on what the law should say, and the AG cannot resolve factual disputes. It would be up to Somervell County to challenge this in court if the members of the court disagree.
There are a companion set of bills going through the Texas Senate and the Texas House right now, which essentially would change the law, if passed, to take out the text for the size of the local county. (See how that piece is stricken out, below.) That would allow the local county to issue payroll checks without explicit approval at a commissioners court meeting.
S.B. No. 354
A BILL TO BE ENTITLED
relating to authority of certain officers of certain counties to
disburse or direct payment of county funds for salaries or
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 113.047, Local Government Code, is
amended to read as follows:
Sec. 113.047. DISBURSEMENTS FOR SALARIES OR EXPENSES [IN
COUNTY WITH POPULATION OF 190,000 OR MORE]. After the deposit of
funds in a county depository, an officer [in a county with a
population of 190,000 or more] may draw checks on the county
treasurer to disburse the funds as payment for a salary or expenses
authorized by law or in payment to the county or to the person to
whom the funds belong.
SECTION 2. Subchapter B, Chapter 154, Local Government
Code, is amended by adding Section 154.0235 to read as follows:
Sec.154.0235.PROCEDURES REGARDING PAYMENT OF OFFICE
EXPENSES AND EMPLOYEE SALARIES . (a)A district, county, or
precinct officer may issue a warrant against the salary fund to pay
authorized expenses of the office or the salary of an employee whose
salary may be paid from the fund.
(b)A payment may not be made from the salary fund to an
employee for a service performed before the person has taken the
constitutional oath of office, if applicable, and the person's
authorized appointment and oath, if any, have been filed for record
with the county clerk and the county auditor, if the county has a
SECTION 3. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2019.
The question I have is whether, legal or not, it's not a better idea to do payroll approvals, especially if they have changing numbers, in a posted meeting and approved by vote by the county commissioners. I believe it's better to change a meeting date so that it can be transparent. It was good to hear a couple of commissioners insist on having a vote on payroll in order to follow the law, surprised about this next.
Johnson: I'm willing to let it roll one more time.....
Hulsey: Are you willing to break the law?"
Johnson: Y'all been breaking it for all this time.
Hulsey: Several years
Johnson: We're attempting to correct the problem.I'm not saying that's right but I'm not willing to sacrifice other people's paychecks.
Having an additional meeting doesn't sacrifice people's paychecks AND follows the law. Again, from Feb 11, 2019
Meeting from Feb 14, 2019 -Chambers wants to say that the Commissioners Court not following the law is an inconsistency. (I'll try using that the next time I'm doing 90 in a 60 MPH area "Officer, I'm not breaking the law, I'm just being inconsistent today)" Also, there were some problems with direct deposit.
My personal opinion is that Susan, the treasurer, was in the right for wanting to do things legally.
I wonder why the county attorney, Andy Lucas, wasn't on top of this?
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