Untitled Texas Attorney General Opinion

HonorabLe C. Woodrow Laughlin .' County Attorney Jim Well@ County Allae, Texas Dear Sir: OP~IIIOII NO: o-2116 Be: (1) May the board.~oftrustees, of an independent a~hool~dls:- trlat,~hlrea searet&ry,~who ls.not a trustee, and.pay,hlm a~salmy? (2) May th&,kssesioiof,taxes for ap lndepandentachbol d&s- trFot~legallybs-paid more .than tvo (2).per oent of the taxes'+messed?' If m, under 'what~alroumstanae~? Ue have ~oa&fully oonsldered yonr~~requesd for: the opinion of thls'departmen$touching the questions stated above. In discussingyour first question, Ve shall first analyze the opinion ih the aase of-Board of Trusteee of IndependentSchool Dlstz$ct of Houston v. Dow, 63 3. W. 1027, (writ of error denled). ! This case Involved a s~ultlnatltuted.agalnstthe Board of Trustees of the IxidependentSchool District of. Houston (appellants)to restraln~themfrom paying a salary to tuo niembereof ths Board w&o ue~e~servingaa~secretarg and treasurer,respeatively,thereof. It was agreed that If suah members aould be legally pald compensationas such, the salary fixed was reasonable forth? services incident to the poaltlons. For the statutory background to the .dealslon, we uote as follows from the opinion of the court at page 1028 : Honorable C. Woodrow Laughlin, Page 2 (o-2116) "The appellants were elected and hold their offices as sahool trustees In accordancewith an act of the legislatureapproved February 21 1900 (Gen. maws 1st Called Sess. 26th Leg. p. 181; Section 1 of the act provides that seven trusteea shall be elected, who .lsballconstitutethe school board of such independentdistrict,and all of whom shall serve without compensation.' Section 4 provides that: "The trustees chosen under this act shall meet wlthln.twentydays after their election, or as soon thereafteras possible; for the purpose of organlzlng. A majority of said board shall constitutea quorum to do business, and they shall choose a president, secretary, treasurer and other necessary officers and committees By section 6 the board Is vested with the power to adopt such rules, regulations,and by-laws as they may deem proper, and the public free schools of the district are placed under their control, and they are given the exaluslve power to manage and govern the schools.~By an act approved June 23, 1897 (Gen. Laws. Sp. Seas. p. 48 ,-amendedby the act of June 6, 1899, (Gen. Laws 1899, p. 329), to regulate and limit the expendlture~of state, county, and local school funds, the.loaal sohool fund may be used in addition to the purposes enumerated for state and county funds; also for 'purchasingappliancesand supplies,for the payment of ,lnsurancepremiums, janitorsand other employes, for buying school sltes, buying, bnlldlng, and rephrlrlngand renting sehool houses, and for other purposes necessary in the icon- dn,ptof the publla schools to be determinedby the board of trustees.1 . . ." The court held that the salaries could'not be legally paid and we quote the following excerpts from the opinion which demonstratethe reasoning of the oou%?t: "It Is clear from the language of the law that the secretaryand treasurer must be members of the board. . . . Their duties as officers cannot be dlf- ferentlatedfrom their general duties as trustees, so as to entitle them to compensation. . . . There Is no speclfla provision of~law fixing salaries to the offices of secretaryand treasurer of a board of school trustees, and if the secretary and treasurer of the appellant board are entitled to receive salaries, authoritymust be found Honorable C. Woodrow Laughlin, Page~3 (O-2116) .L ::=;..., In the law for the board.:to.fix:them. Looking:!tothe statutes, no express autbority"ls'found,butonfthe contrary, there is an-express.prohlbltlon~of.:comptn- sation to all the members:@ the-Board,of~.truatees: It would be against-.%well-settled -ru1e..of. .$lic policy to.allow~it..to ,pay,monkyto~:itsOwn ~membersunder .theguise of:compensatlon~:for extra-~ official duties. w . ~Buti even if,the#dutlesof the ,, secretaryand treasurer should be regarded as distinct: from their duties as trustees, what authority has th(; board for allowLing,them .salarles.out .of-the:school funds? Such authority must be 'foundin~the:plalnpur- ,poseof the law. 1stmust-be granted.. It,.cannot be. lmpll.ed from general language gFvlng.t~e,trustee,s.~ .. exclusive power to manage and govern the..schoolfl. i,.!. ?'~ The only slgnlficant~ohangd-In~t.~~s~.atut?;relat~:sg.:. to the subject at band pertains to the chooeing:ofthe ~tifficers of the board; the powers~lnvestedIn the boardj,!with.-reference. to -theezcpendltureof school .funds,are -essentially-the ,~same,~$n the statut.estoday.. : .. '~ The statute as~ektcted ln.1900, pertalnlngto the -choosingof :the of!fiaers .of the board, (shown in..tbee quoted ex- cerpt from tlrr,opinion of.the court),.read: "A.~maj.orlty.of said board shall.constitute,a quorum to do busLn&sa, and they..shall choose a preside&j. secretary, treasurer~.and.other;n~cessary of- ficers and coma%~te~.s".;.:.whereasi ~the~atatutenow read,st !':. . . They shall.c.boose,--fromtheir .humber~a~.president;and'they shall choose:a~eecretary~.a,~treasurer, asseas~or-and.colisc~~;or!o~ taxes, and'otlrlinedessa~'offi~erskirdabmmittees"..(Aat?;;i905,.29th Legislatiire;,‘-oh.'124.,: par..165, .p.~306;:~~~til~~.27~~~Revl~ed _~_ ,_. ._. ~.. Civil Statutes). Xt will be obserked that the &atu&aaiiti formerly.read, and 8~sbefore the eourt.ln the-,case~under~discusslon,required,the officers of %he board,,lncludlng+he secretary to be .members.-there- of;.,whereas;the.statute as it now reads, while requiring,the~,: president to-bea member of the board,-does not spealfioallgrequire the secretary,and other,.offFcers named,~~tobe a member. .The adoption of the new terml.nology~wouldseem.to establish a clear legislativeIntent not ,to..thereafterrequire the secretary,and the other ,oPflcersnamed.,to be members of the board ~of trustees: Mating from ~thlsproposition;namely, that k.he.sta&te does not now requFre.the secretary of the board to be a member thereofi~wefurther analyze the cited case under discussion to ascertain If.this .caseis',-nottithstandlng~.the statutory~change, still determinativeof the questionbefore us. Honorable C. Woodrow Laughlin, Page 4 (O-2116) The opinion, as shown by the quoted excerpts, was ground- ed primarily on the propositionthatthe secretary was a member of the board, his duties in fllling such offke of secretary could not be differentiatedfrom his general duties as a trustee, and it would thereforebs opposed to public policy to allow payment of money to a member of the board under the guise of compensationfor extra-officialduties; seaondarily,on the propositionthat, none the less, no authority for paying such salary Is found In the stat- utes. A thoughtful study of the case compels the oonclasion that the controllingpropositionIn the mind of the court; from which,the oplnlon cannot be divqrced, was that to Lmply~~the' power of the board to compensate its member-secretary(dr treaiwi-or) would be violative of the express statutory prohibitionagainst a membersof the board receiving oompensation,as well as contraryto public policy. The case is not, in our opinion, authority for the proposltlon,when the statutorybasis of this propositionhas been removed, that the authority of the board to compensateits non- member secretarymay snotreasonably be implied from the--grant of power In Article 2827, Revised Civil Statutes, which reads, in part: 11 . . . Loos1 schooi funds from district taxes, tuition fees of pupils not entitled to free tuition. and other local sources.may be used for.the purposes enumeratedfor state and county funds and for puraka&=. lng appliancesand supplies, for the payment of Insnr- ante premllums,janitors and other eaployees, for buy- ing school sites, buying, building and repairing and renting school houses, and.for other purposes nedessary in the conduct of the public schools to be determihed y the board of trustees.~. . ." (Emphasis ours) It is observed that the court did not discuss the broad grant of power appearing In Article 2827,~ supra, underscoredabove. Moreover, we are constrainedto the opinion that this department cannot rule, categorically,under the language of this statute, that under no state of facts would .theemployment of a non-member secretaryby the board of trustees of an independentschool district be legally allowable under this broad grant of power. Rather, lt~ is our opinion that facts may exist rendering it reasonable,proper and necessary, in the conduct of the sbhools, for the board of trustees to choose a non-member secretary;and provide oompenaation for such offlaer In a sum oommensuratewith the duties incident thereto. We partioularlyemphaslee, however, that, In our opinion, the courts of Texas would carefullg,protectthe people from an abuse of this implied power of the board, and would sanction no such expenditure of school funds except upon a clear showing of the reasonablenessand neoesslty therefor. Honorable C. Woodrow Laughlin, Page 5 (0-2116) Your second question, we believe, is,resolvedby Article 2791, Revised Civil Statutes, which reads, In part, as follows: II . . . It shall be wlthin the discretlon.ofthe board of trustees of any Independentschool district to name an assessor of taxes who shall assess the taxable property wlthin the limits of the Independent school district within the time and in the manner pro- vided by existing laws, In so far as they are appllca- ble, . . . the said assessor of taxes shall receive a fee or two per cent of the whole amount of taxes assessed by him and as shown by the completed certifiedtax rolls." We know of no statute that would allow an assessor of taxes of an Independentschool district, as distinguishedfrom the district assessor and collector of taxes, to receive a fee In excess of two per cent of the whole amount of taxes assessed by him, as provided In the foregoing statute. Your second question is therefore respectfullyanswered In the negative. Trusting that we have satisfactorilyanswered yourin- quiry, we remain, Yours very truly, ATTORREYCERERALOFTEXAS By /s/ Zollle C. Steakley Zollle C. Steakley ACS:IX:mjs Assistant APPROVED APR 17; 1940 APPROVED OPIEIOR COMMITTEE