Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS GREG ABBOTT May 1,2008 Mr. Sidney "Buck" LaQuey Opinion No. GA-0620 Grimes County Auditor Post Office Box 510 Re: Procedures that a commissioners court must Anderson, Texas 77830 follow in the annual budget process in regard to salaries and personal expenses for each elected county and precinct officer (RQ-0642-GA) Dear Mr. LaQuey: You ask several questions about the procedure that a commissioners court must follow in reducing the salaries ofelected county officials. 1 You tell us that the Grimes County Judge filed the proposed budget for Grimes County in accordance with section 111.006 of the Local Government Code on August 29, 2007. See Request Letter, supra note 1, at 1. On September 17, 2007, the Grimes County Commissioners Court held a public hearing pursuant to section 111.007 ofthe Local Government Code regarding the budget proposed by the County Judge. Id At the public hearing, "a Commissioner proposed a salary reduction for each Commissioner of approximately $7,000," and the reduction was adopted. Id. at 2. You state that "there was no written or oral notice given to any Commissioner prior to the meeting that the salary of each Commissioner would be reduced." Id. On September 25, 2007, following an unknown number ofbudget hearings, the final budget was "filed with the County Clerk" pursuant to section 111.009 of the Local Government Code. Id.; see TEX. Lac. GOV'T CODE ANN. § 111.009 (Vernon 2008). You ask three questions regarding the annual county budget process: 1. Is the Commissioners' Court required to notify all elected officials including County Commissioners in writing prior to the annual budget hearing of a proposed salary reduction from that proposed in the budget filed by the County Judge? 2. [M]ust the Commissioners' Court give written notice to all elected officials including County Commissioners of their ILetter from Sidney "Buck" LaQuey, Grimes County Auditor, to Honorable Greg Abbott, Attorney General of Texas (Oct. 22, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter]. Mr. Sidney "Buck" LaQuey - Page 2 (GA-0620) proposed salaries and expenses more than fifteen days before adopting the budget thereby granting any potentially aggrieved officer the maximum amount oftime permitted by law in which to request a hearing and granting the salary grievance committee the maximum amount of time permitted by law in which to hold a hearing? 3. If the Commissioners' Court fails to give each elected officer including each County Commissioner written notice of the Commissioner's proposed salary and expenses prior to the annual budget meeting after which the budget is adopted, may the Court then, pay the officer the reduced amount? Request Letter, supra note 1, at 1, 3, 4. Before answering your specific questions, we note that, in Attorney General Opinion GA-0051 (2003), we thoroughly explained the county budgeting process. As a result, we will begin by briefly summarizing that process, with references, as appropriate, to that opinion. In a county of225,000 or fewer, such as Grimes County,2 during either the seventh or tenth month of a fiscal year, as determined by the commissioners court, the county judge is required to "prepare a budget to cover all proposed expenditures of the county government for the succeeding fiscal year." TEX. Loc. GOV'T CODE ANN. § 111.003(a) (Vernon 2008). "When the county judge has completed the preparation of the budget, the judge shall file a copy ofthe proposed budget with the county clerk." Id. § 111.006(a). Subsequently, "[t]he commissioners court shall hold a public hearing on the proposed budget." Id. § 111.007(a). The hearing must be set for a date that is "after the 15th day of the month next following the month" in which the county judge first prepared the budget. Id. § 111.007(b) (emphasis added). Thereafter, the commissioners court must give public notice of the date that it will consider the proposed budget. See ide §§ 111.007(c), .0075. "At the conclusion ofthe public hearing, the commissioners court shall take action on the proposed budget, [having made] any changes in the proposed budget that it considers warranted by the law and required by the interests of the taxpayers." Id. § 111.008(a)-(b); see generally Tex. Att'y Gen. Ope No. GA-0051 (2003).3 Simultaneously with the process just described, another process occurs-this one involving the statutory directive to a commissioners court to "set the amount of the compensation, office and travel expenses, and all other allowances for county and precinct officers and employees who are paid wholly from county funds." TEX. Loc. GOV'T CODE ANN. § 152.011 (Vernon 2008). The 2As ofthe 2000 Census, the population ofGrimes County was 23,552. See BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, 2000 CENSUS OF POPULATION, available at http://quickfacts.census.gov/qfd/states/48/48185.html (State and County Quick Facts) (last visited Apr. 29, 2008). 3We specifically do not construe the term "take action" to be limited to the fmal adoption of the budget. Mr. Sidney "Buck" LaQuey - Page 3 (GA-0620) commissioners court is required to "set the items at a regular meeting ofthe court during the regular budget hearing and adoption proceedings." Id. § 152.013(a). We do not understand this "regular meeting" necessarily to have been a public hearing on the proposed budget. "Before the 10th day before the date of the meeting, the commissioners court must publish in a newspaper of general circulation in the county a notice of: (1) any salaries, expenses, or allowances that are proposed to be increased; and (2) the amount of the proposed increases." Id. § 152.013(b). "The written notice provided to the elected officers marks the beginning of the grievance process, through which an officer may request the county's salary grievance committee4 to reconsider that officer's proposed salary or personal expenses." Tex. Att'y Gen. Op. No. GA-0051 (2003) at 2 (footnote added). Any officer "who is aggrieved by the setting of the officer's salary or personal expenses may request a hearing before the salary grievance committee before the approval of the county's annual budget." TEX. Loc. GOV'T CODE ANN. § 152.016(a) (Vernon 2008). The request must, among other things, "be in writing" and must "be delivered to the committee chairman within five days after the date the officer receives notice of the salary or personal expenses." Id The grievance committee is then required to "hold a public hearing not later than the later ofthe 10th day after: (1) the date the request is received; or (2) the date the commissioners court selects the public members of the committee." Id. § 152.016(b). The statute then provides a complex formula for determining the fate of the committee vote. 5 Id. § 152.016(c). We now tum to your specific questions. You first ask whether the "Commissioners' Court [is] required to notify all elected officials including" the individual county commissioners, in writing, "prior to the annual budget hearing of a proposed salary reduction from that proposed in the budget filed by the County Judge." Request Letter, supra note 1, at 1. "Before filing the annual budget with the county clerk," section 152.013Jc) ofthe Local Government Code requires a commissioners court to give written notice "to each elected county and precinct officer ofthe officer's salary and personal expenses to be included in the budget." TEX. Loc. GOV'T CODE ANN. § 152.013(c) (Vernon 2008). Thus, an officer, including a county commissioner, must be notified in writing of the salary and expenses proposed for that officer's position before the final budget is filed with the county clerk, regardless of whether the proposal constitutes an increase or a reduction in salary or expenses. See Tex. Att'y Gen. Op. No. GA-0051 (2003) at 4 ("[T]he commissioners court must notify elected officers ofproposed salaries and expenses after having received the proposed budget from the county judge, but sufficiently before the court's approval so that an aggrieved officer can receive a determination from the salary grievance committee."). The commissioners court's duty to notify the officer continues until the commissioners court has filed the final budget with the county clerk. Id. 4A salary grievance committee consists of nine members, the allocation of which is determined partially by statute and partially by the commissioners court. See TEX. Lac. Gov'r CODE ANN. § 152.014 (Vernon 2008) 5"lf, after the hearing, six or more of the members vote to recommend an increase in the officer's salary or personal expenses, the committee shall submit its recommendation to the commissioners court in writing. If six to eight members vote to recommend the increase, the commissioners court shall consider the recommendation at its next meeting. Ifnine members vote to recommend the increase and sign the recommendation, the commissioners court shall include the increase in the budget before the budget is filed and the increase takes effect in the next budget year." Id. § 152.016(c) (emphasis added). Mr. Sidney "Buck" LaQuey - Page 4 (GA-0620) You next ask whether the commissioners court must give the requisite written notice "more than fifteen days before adopting the budget." Request Letter, supra note 1, at 3. This question assumes a worst-case scenario in which "notice [under section 152.013(c)] is mailed to the elected official, who then waits until the fifth day after his receipt of such to request a hearing before the salary grievance committee, which then waits until the tenth day after the receipt of the request to hold a hearing." Id. at 4. We note first that section 111.007(b) of the Local Government Code provides that the hearing on the proposed budget must be set for a date that is "after the 15th day of the month next following the month" in which the county judge first prepared the budget. TEX. Loc. GOV'TCODEANN. § 111.007(b) (Vernon 2008) (emphasis added). This provision should generally insure that a county has enough time to include the findings of the grievance committee before a commissioners court adopts its final budget. Although the statute does not mandate that notice be given more than fifteen days prior to the final adoption of the budget, that requirement may be administratively necessary in order to comply with the requisite statutory deadlines for grievance and budget procedures. See ide §§ 152.013, .016. Whether it is in fact necessary would require resolution of factual issues that are not amenable to the opinion process. See Tex. Att'y Gen. Ope No. GA-0391 (2006) at 12 ("Resolving questions of fact is beyond the scope of the opinion process."). Because ofthe various permutations involved in your question, we decline to speculate about a worst-case scenario. In order to comply with the requisite deadlines for grievance and budget procedures, county officials should commence these procedures at the earliest possible date. We emphasize, however, that the recommendations of the grievance committee must be presented to the commissioners court before the court files its final budget with the county clerk. Your last question is whether the commissioners court may pay commissioners the reduced salary, even though the court failed to give written notice to the commissioners of the proposed salary and expenses prior to the annual budget hearing. See Request Letter, supra note 1, at 4. As we said in answer to your first question, section 152.013(c) ofthe Local Government Code requires the commissioners court to give written notice of proposed salary and expenses to each elected county official, including members of the court itself, before the budget is approved. In a prior opinion, this office said that a commissioners court that adopted a salary for the sheriff higher than that posted in the notice required by section 152.013(b) was not authorized to pay the sheriff the increased amount. Rather, the sheriffwas entitled only to the salary that he received during the prior budget year. See Tex. Att'y Gen. Ope No. GA-0162 (2004) at 2-3. Just as the public notice requirement of section 152.013(b) is mandatory, so too is the individual notice requirement of section 152.013(c). See TEX. Loc. GOV'T CODE ANN. § 152.013(b)-(c) (Vernon 2008). Accordingly, if the commissioners court fails to give the written notice required in section 152.023(c) before the final adoption ofthe budget, the salaries of the commissioners must remain fixed at the prior year's amount. Tex. Att'y Gen. Ope No.GA-0162 (2004) at 2-3 (although commissioners court had approved increase in sheriffs salary, court did not comply with required notice requirements; thus, sheriffs salary was limited to that of prior year). You indicate that because members ofthe commissioners court were not given written notice ofthe proposed salary reduction, the increased expenditure ofpaying them their prior year's salaries will require the commissioners court to amend the budget. See Request Letter, supra note 1, at 4. "After final approval of the budget, the commissioners court may spend county funds only in strict Mr. Sidney "Buck" LaQuey - Page 5 (GA-0620) compliance with the budget, except in an emergency.." TEX. Loc. GOV'T CODE ANN. § 111.010(b) (Vernon 2008) (emphasis added). An "emergency" requires "a case ofgrave public necessity to meet an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention." Id. § 111.010(c). As you observe, it may be questioned whether the situation presented here constitutes "an unusual and unforeseen condition that could not have been included in the original budget through the use of reasonably diligent thought and attention." Request Letter, supra note 1, at 4. On the other hand, the Commissioners Court might point to the significant number of attorney general opinions on county budget matters iIi recent years to conclude that even "reasonably diligent thought and attention" could not have prevented the current situation. In any case, whether the circumstances warrant such a finding is a fact question that is not amenable to the opinion process. Rather, that determination must be made in the first instance by the commissioners court itself, and ultimately, by a court ofthe judiciary. See Tex. Att'y Gen. Ope No. GA-0542 (2007) at 5 ("This office does not find facts or resolve fact questions in the opinion process."). In conclusion, a commissioners court is required to provide written notice to each elected county and precinct officer ofthe officer's salary and personal expenses to be included in the budget before the final annual budget is filed with the county clerk. See TEX. Loc. GOV'T CODE ANN. § l52.0l3(c) (Vernon 2008). Section 111.007(b) of the Local Government Code provides that the budget hearing must be set for a date that is "after the 15th day of the month next following the month" in which the county judge first prepared the budget. Id. § i ll.007(b) (emphasis added). This provision should generally insure that a commissioners court has enough time to include the findings ofa grievance committee before adoption ofthe final budget. To the extent that it does not, we recommend commencing the two processes as early as possible in order to comply with the intricacies of the two schemes. If the commissioners court failed to give written notice to each commissioner of a proposed salary reduction before adopting the final budget, the salaries of the commissioners must remain fixed at the prior year's amount. Mr. Sidney "Buck" LaQuey - Page 6 (GA-0620) SUMMARY "Before filing the annual budget with the county clerk," the commissioners court ofa county is required to provide "written notice to each elected county and precinct officer," including members of the court itself, "of the officer's salary and personal expenses to be included in the budget." TEX. Lac. GOV'T CODE ANN. § 152.013(c) (Vernon 2008). Recommendations of a salary grievance committee should be considered before a commissioners court adopts a final budget. If a commissioners court fails to give written notice of a commissioner's salary and expenses included in the budget, the commissioners court may not adopt a proposed salary reduction, and the salaries of the commissioners must remain fixed at the prior year's amount. KENT C. SULLIVAN First Assistant Attorney General ANDREW WEBER Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee