Op. Atty. Gen. 124a ( 1994 )

COUN'I"Y COMMISSIONERS: COMPENSA'I``ION PER DIEM AL.-"_GWANCE. Authority
to provide per diem allowance does not permit a per meeting payment. Rer diem payment
permitted for meetings of county board. Members may not be paid multiple per diem for
meetings held on the same day, absent independent statutory authority Minn. Stat. §§ 375.055.
375.065.
1243
Aprii zs. 1994
Marl< B. Dayton
State Auditor
Suite 400
525 Parlt Street
Saint Paul. MN 55103
Dear Mr. Dayton:
In your letter you set forth substantially the following:
FAC"l``S
Minnesota law generally authorizes county commissioners to receive
"per diem" payments in addition to salary, for the performance of official
duties.
It is current practice in many counties to interpret "per diem" as a per meeting
fee. However. we find no authority for the payment of a per meeting fee
under current Minnesota Statutes. and therefore seek your advice on the
authority for these payments
Crow Wing County. for example established a per meeting fee of $25.00 on
Decernber 30, 1991. for county meetings, subject to an exception for Planning
Commission and Board of Adjustment meetings, which are $30.00 per
meeting. This resolution was reafl"u'med on 0ctobei‘ 5, 1993.
During the course of our review of per diem payments we noted that multiple
payments of $25.00 were paid for the same day for attendance at such
meetings as community health service, planning committee, solid waste
committee. ambulance meetings, community corrections, and county health.
In addition, meeting fees for sub»committees of the Board are paid for such
meetings as building committee. county highway, land and forestry and county
sheriff. We noted instances where per meeting fees were paid for attendance
at township, fire and municipal council meetings on a day where a per meeting
fee was also paid for attendance at a committee of the County Board or a
special meeting of the Board.
More generally, we are advised by our field staff that some counties also pay a
per diem fee for ittendance at the regular board meeting and all other special
Mark B. Dayton
Page 2
Aioril 28 , 1994
meetings and committees allowing multiple per diem payments for attendance
at these events on the same day. ln addition. it has been reported to us that
commissioners submit per diem claims for attendance at township meetings
and other meetings of local units of govemment. 'l``he individual commissioner
determines whether attendance and submission of claims for per diem payment
is appropriate
You then ask substantially the following questions
QUESTION ONE
May counties establish a schedule of "per meeting" payments rather than
per diem payments for county commissioners in addition to their salaries‘?
OPINION
V e answer your question in the negative Compcnsation for county commissioners in
most counties is provided pursuant to Minn. Stat. §§ 375.055-375.065 (1992). Minn. Stat.
§ 375.055`` subd. l, provides in part:
The county commissioners in all counties. except Hennepin and Ramsey,
shall receive as compensation for services rendered by them for their respective
counties, annual salaries and in addition may receive p;r diem payment and
reimpursemept for necessagg expenses in performing the dpties of the office as set
by resplution of the coung board. The salary and schedule of per diem payments
shall not be effective until January 1 of the next year. The resolution shall
contain a statement of the new salary on an annual basis. Thg board may
establish a schedule ot`` per diem payments for service by individpal coungv_
commissiopers on anv hoard, committee or conunissiop of county government
including com_rnittees on the board, or for the perfogpance of se;viccs by
individual acting commissioners when required by law.
(Emphasis added)
Minn. Stat. §475.06, sub-d. 1. provides in part:
'l``he members of the county boards in counties other than Hennepin, Rarnsey, and
St. Louis, may be paid a per diem pursuant to Sectiop 375.055, suglivisipp l,
for gach day necessarily occupied in the discharge of their oft``igial duties while
acting on any committee under the direction of the board, and may be paid their
actual and necessary traveling expenses in accordance with Section 471.665 for
travel incurred in the discharge of the committee work. Any committee may be
comprised of all of the members of the county board.
(``Emphasis added)
.\/lark B. Dayton
Page 3
Ar)ril 28 , 1994
Thus. county commissioners are authorized to receive annual salaries and may also be
paid "per diem" for performing the duties of office. including work on committees "under the
direction of the board." and individual services as commissioners "when required by law. "
As noted in the materials included with your letter. the plain meaning of the term
"per diem" is "by the day" or "pay for a day``s service" Black’s Law Dictionary (Rev.
4th Ed.) 1293. Words in statutes are generally to be construed in accordance with their
common and approved usage Minn. Stat. § 645408(1) (1992). Thus. we must assume. absent
any authority to the contrary_ that the "per diem" compensation authorized by the foregoing
statutes is intended to be computed and allowed by the day in which services are performed.
rather than with respect to each "meeting" attended or each separate task performed. This
concept is clearly expressed in Section 475.06. subd. l. quoted above iii stating that the
payment may be made for "each day necessarily occupied " in the discharge of duties.
QUEST!ON TWO
May a county board member receive a "per diem " for attendance at the regular meeting
of the board?
OPINION
We answer your question in the affirmative As noted above, Section 375.055,
authorizes the county board of commissioners to provide. by resolution. a salary and schedule
of per diem payments to be paid to commissioners for performing “the duties of office." The
board is required by statute to meet on the "t``irst Tuesday after the first Monday iri January,
and on other days it prescribes as necessary for the interests of the county." Minn. Stat.
§ 375.07 (1992). lt seems clear that attendance at meetings of the board is one of the "duties
of the office" for which per diem payments may be allowed. Therel``ore. it is our view that
such payment are permitted to the extent prescribed in the resolution of the board establishing
the schedule of per diem payments
This opinion is. howevcr. subject to the provisions of Minn. Stat. §375.065 (1992),
which prohibits any county commissioner whose salary is more than 50 percent of the
Mark B. Dayton
Page 4
Ar)ril 28 , 1994
1
governor``s salary. from receiving any per diem for ``attendance at meetings related to the
business of any local government unit. "
QUESTION THREE
May a county board member receive a per diem on the day of the county board
meeting if the member also attends a committee meeting of the board or performs
other board related services on that day'?
OPINION
The response to Question two above would appear to provide the answer to this question
as well.
QUESTION FOUR
May a county board member receive multiple per diem payments on the same day
when the board member attends several committee meetings and performs such
services as road inspection?
OPINION
We answer your question in the negative As noted above, the "per diem" authorized by
Sections 375.055 and 375.06 is to be paid by the "day" spent in performing the duties of
office. However. inasmuch as the law, in many circumstances, does not recognize fractions of
a day. it is generally held that no particular length of time spent in a given day is required to
entitle an officer to collect per diem for a "day" of work. B, ga Op. Att. Gen. 124a,
May 19, 1959, Ann_ot. l ALR. 276, 277. On the other hand. it is also generally held that an
officer cannot collect more than one day’s per diem pursuant to the same authority, regardless
of the number of hours spent in performing work in a single day. _P_t_npo_t. 1, ALR, 276, 278.
Minn. Stat. §375.055. subd. 1. authorizes payment to commissioners by the day for
performing the duties of office. Section 375.06 authorizes the same per diem "pursuant to
Section 375 .055, subdivision l" for each day necessarily occupied in the discharge of official
duties while acting on any committee under the direction of the board. Thus. it appears that
per diem whether for committee work or other "duties of office" is payable under the single
authority of Section 375.055. subd. l.
Marlt B. Dayton
Page 5
A_r)ri]_ 28 , 1994
'l``heret``ore. it is our view that a county commissioner. when authorized by resolution of
the board. may collect one per diem for each day spent in performing the official duties
connected with the ofi'ice. regardless of how few or many separate duties connected with the
office are performed in such day.
We recognize. however. that there might exist other statutes which provide independent
authority for per diem payments in addition to those authorized by Sections 375 .055. 375.06.
Minn. Stat. § 375.055. subd. 5. provides iii part:
Exccpt as provided herein nothing in this section shall limit the right of a county
commissioner to collect and retain any fees. per diem payment made pursuant to
subdivision l. or any mileage or expense allowance. or reimbursement of expenses
in attending meetings or in the conduct of the business of a board. commission or
committee of county government on which the commissioner serves. which the
commissioner is now authorized bv anv other law to collect and retain in addition to
the stated annual salagg.
(Emphasis added)
This subdivision has recognized that commissioners in addition to serving as such,
might serve on other bodies of government for which additional compensation is separately
authorized by statute. ln those situations we have concluded that more than one per diem
might be retained for a given calendar day in which a commissioner performs commissioner
duties and also performs duties for a statutorily separate body with independent authority to
compensate its members For example, in Op. Atty. Gen. 1243, May 19, 1959, we concluded
that a county board member might receive per diem pursuant to Section 375.06 for
commission work as part of a road viewing committce. and could also retain per diem for a
county welfare board meeting held the same day. As noted in that opinion. Section 393 .03 at
that time provided that each member of the welfare board may receive per diem "in addition to
other salary received from any other source." The opinion noted that "when county
commissioners attend meetings of the county welfare board, they do so as members of that
board and not as county commissioners "
Marlt B. Dayton
Page 6
Apri]. 28 , 1994
Likewise in Op. Atty. Gen. 124a. April 12. 1972_ we concluded that a commissioner
could receive two per diem allowances for attending a meeting of the welfare board and a
meeting of the hospital board on the same day. Again. at the time. both the hospital board and
welfare board were constituted under separate statutes each independently authorizing payment
of added compensation
Thus. there may be instances in which a commissioner might be separately authorized to
receive a per diem apart from the one authorized for work as a county commissioner It
appears, however. that such separate authority has been. for the most part. eliminated
In 1975`` when the legislature amended Minn. Stat. §375.055. subd. l. to generally
authorize the payment of per diem to county commissioners in addition to salary, it also
amended other statutes pertaining to various boards and committees related to county
government to remove separate authority for payment of per diem to county commissioners
who are members. and to direct that Section 375.55. as amended, be the source of per diem
authority for commissioners serving with such bodies. Act of June 4. 1975, ch. 301,
1975 Minn I_.aws 816. M. §§ l (Extension Committee). 2 (drainage proceedings), 4,5 (tax
forfeited land sales), 6 (fence viewings) 10 (miscell.aneous county boards. agencies or
committees). 12 (nursing home boards). 13 (welfare boards). 14 (planning comrnissions).
We have not located independent authority for payment of per diem other than that
provided for in Section 375.055 for work with the committees mentioned iii your letter or for
such things as "road irispection.°'1 Absent such independent authority. it is our view that a
commit toner may receive. under Section 375.055, one day’s per diem for each day spent in
carrying out his or her county duties regardless of how many or few separate tasks are
involved.
l. - § Op. Atty. Gen. 1930, No. 273. P. 248 (enclosed) which distinguishes between
legitimate "committee" work and undertaking of the function of the town engineer.
Mark B. Dayton
Page 7
A_r)ril 28, 1994
QUES'I'ION FIVE
Is there authority to pay a per diem for attendance at meetings of other bodies
such as township meetings or fire department meetings and if so, must t;'ie annual
resolution detail which meetings other than county meetings qualify for per diem?
OPINION
Except as qualified below, we answer your question in the negative. The authority to
pay per diem for attendance at such meetings would depend upon whether that attendance
could reasonably be viewed as acting on a committee under the direction oi`` the board (Minn.
Stat. §375 96. subd. l), or service by an individual which is either "required by law” or
associated with a "board. committee. or commission of county government," (Minn. Stat.
§ 375.055, subd. 1). We are not aware of specific instances iii which a county commissiomr,
as such. would be expressly required by law to attend town meetings or fire department
meetings Nor would such groups be considered boards, commissions or committees of the
county.
lt is, of course. possible that the county board may, in appropriate circumstaimes,
designate one or more commissioners as a committee to perform some fact-finding or liaison
function which would necessitate attendance at meetings of some organizations or group
outside of county goveriunent. In those circumstances per diem would seem to be authorized
pursuant to Minn. Stat. § 375.06. subd. 1. However. we do not find authority for payment of
per diem for general attendance where a commissioner simply decides on his or her own to
attend such meetings g Op. Atty. Gen. 1930, No. 273, P. 248; 12»"..-A, June 15. 1951
(copy enclosed).
Best regards.
HUBER'I`` H. HUMPHREY III
Attomey General
Enclosure
. etO