Opinion No. (1976) Ag ( 1976 )

COUNTY COMMISSIONERS — DUTIES AND AUTHORITY — NUMBER AND RATE OF PAY FOR DEPUTIES OF COUNTY OFFICERS — SALARIES — APPROPRIATION BY EXCISE BOARD A board of county commissioners does not have the authority to designate the number of deputies that a county officer may appoint nor may the commissioners fix their rates of pay. Under the provisions of 19 O.S. 180.65 [19-180.65] (1976), the commissioners may recommend the total amount of funds that can be used for the combined salaries in each of the county offices, but the approval of the funding for such offices lies within the responsibility of the county excise board. Each county officer may designate the number of deputies to be employed and may fix their rates of compensation, provided that no such employment shall exceed the amount of lawful funds appropriated for such purpose. County officers have no authority to make salary commitments beyond the amount of funding provided by the county excise board and county officers are not entitled to supplemental salary appropriations for their offices. County officers are authorized to pay their deputies eighty percent (80%) or ninety percent (90%) of the principal officer's salary without the approval of the board of county commissioners. However, in those instances where a county officer employs only two deputies or technical help on a part-time contract or wage basis within the amount of appropriations provided by the county excise board, the officer may pay an employee in excess of eighty percent (80%) by and with the consent and approval of the board of county commissioners. The Attorney General has considered your request for an opinion wherein you ask, in effect, the following questions: (1) In light of the provisions of Senate Bill 753 of the Second Regular Session of the Thirty-fifth Oklahoma Legislature, does a board of county commissioners now have the authority to designate the number of deputies that a county officer may appoint, and fix their rate of pay? (2) Are county officers authorized to pay their deputies eighty percent (80%) or ninety percent (90%) of such officer's salary without the approval of the board of commissioners, if funds have been duly appropriated and available for such purpose ? In the body of your letter requesting an opinion, you refer to the title of Senate Bill 753 of the Second Regular Session of the Thirty-fifth Oklahoma Legislature (1976) which appears to remove the authority of county commissioners to exercise any control as to fixing the number of deputies a county officer may appoint or to fix their rate of pay. Section 2 of Senate Bill 753 of the Second Regular Session of the Thirty-fifth Oklahoma Legislature (1976) provides: "19 O.S. 180.6 [19-180.6] (1971), is amended to read as follows: "(a) The officers named in groups 'A' and 'B' shall have such number of regular or technical deputies, assistants, investigators, evidence men, aides, stenographers or reporters, technicians, undersheriffs, jailers, matrons, handwriting and fingerprint experts, probation officers, and/or juvenile officers, bailiffs, or other help, whatever title the principal officer may ascribe to the duties or functions to be performed as authorized by law and clearly related to the proper accomplishment of lawful functions, whether on whole or part-time basis, at such rates of salary or pay, subject to the provisions of this section as hereinafter set forth, for the adequate accomplishment of the functions of the office and the performance of the duties imposed thereon by law, with due weight being given to employment on whole or part-time basis; provided, that no such employments shall exceed the amount of lawful funds appropriated for such purpose. "(b) Each principal officer named in groups 'A' and 'B', except judges, shall designate of record in the office of the county clerk a first or chief deputy or assistant who shall be chargeable with all the duties of such principal officer, while subject to the direction of the same; and such first or chief deputy or assistant shall carry on the duties of the office during the absence of the principal officer or, in the event of the death, removal or resignation of said principal officer, until a successor shall have qualified. During periods of vacancy of the principal office, resulting from the death, removal or resignation of the principal officer, the chief deputy or assistant shall be bonded in the same manner and in the same sum as required for the principal officer. "(c) The first or chief deputy or assistant to any officer, as authorized by Subsection (b) of this section, shall receive a salary not to exceed ninety percent (90%) of the salary of the principal officer; and, if the principal officer has more than one deputy or assistant, that person or those persons whom the principal officer may designate as 'second deputy' or 'second assistant' shall receive a salary not to exceed eighty percent (80%) of the salary of the principal officer; and the aforesaid salaries within said limitation shall be such amounts as the principal officer may establish. The numerical rank of any deputy or assistant to be effective must be by designation of the principal officer by his signature and filed with the county clerk. The numerical rank of any deputy or assistant shall be with the sole discretion of the principal officer. "(d) No other deputy, aide, assistant or other person named in Subsection (a) of this section may be paid at a salary rate in excess of eighty percent (80%) of the salary of the principal officer; and, subject to said limitation, the salary or rate of pay of such subordinate shall be determined by the principal officer based upon responsibility, risks, skills, training, and experience required for such position and afforded by the subordinate; provided that the eighty percent (80%) limitation shall not apply to county officers employing only two deputies or technical help on a part-time contract or wage basis with the amount of lawful appropriations for said purpose, by and with the consent and approval of the county commissioners. "(e) The salary paid to such deputies, assistants, or other person shall not exceed ninety percent (90%) or eighty percent (80%), respectively, of the total salary paid to such principal officers. "(f) The board of county commissioners shall continue to have the authority to recommend the total amount of funds that can be used for the combined salaries in each of the county offices covered by this act, and the approval of said funding for such offices shall continue to be the responsibility of the county excise board. County officers shall have no authority to make salary commitments beyond the amount of said funding so provided, and such officers shall not be entitled to supplementary salary appropriations for their offices." It should be noted that Senate Bill 753 of the Second Regular Session of the Thirty-fifth Oklahoma Legislature (1976) is now codified as 19 O.S. 180.65 [19-180.65] (1976). The 1976 Legislature struck the words "as the principal officer may propose and establish the need of and the county commissioners will approve" out of 19 O.S. 180.65 [19-180.65](a). The deletion of that language evinces a clear legislative intent that the county commissioners have no authority to designate the number of deputies that a county officer may appoint or fix the rate of pay of said deputies. The only function delegated to the commissioners is found in Subsection (f) which was added to 19 O.S. 180.65 [19-180.65] by the 1976 Legislature. It is clear that the board of county commissioners has the authority to recommend the total amount of funds that can be used for salaries in each of the county offices. However, the approval of said funding for county offices is within the authority of the county excise board. It is also clear that each county officer has the authority to designate the number of deputies under his supervision and control and to fix their rates of compensation within statutory perimeters. The only limitations upon county officers are that they may not exceed the amount of lawful funds appropriated for employment purposes nor may they make salary commitments beyond the amount of the funding provided by the excise board. It should also be noted that county officers are not entitled to supplemental salary appropriations for their offices. Your second question may be answered by a plain reading of the statute. County officers are authorized to pay their deputies eighty percent (80%) or ninety percent (90%) of the principal officer's salary without the approval of the board of county commissioners if funds have been duly appropriated and available for that purpose except in those instances where a county officer employs only two deputies or technical help on a part-time contract or wage basis. In those instances where a county officer employs only two deputies or technical help on a part-time contract or wage basis within the amount of lawful appropriations for said purposes, said employees may be paid in excess of eighty percent (80%) of the salary of the principal officer if said payment is made by and with the consent and approval of the board of county commissioners. It is, therefore, the opinion of the Attorney General that your questions be answered in the following manner: A board of county commissioners does not have the authority to designate the number of deputies that a county officer may appoint nor may the commissioners fix their rates of pay. Under the provisions of 19 O.S. 180.65 [19-180.65] (1976), the commissioners may recommend the total amount of funds that can be used for the combined salaries in each of the county offices, but the approval of the funding for such offices lies within the responsibility of the county excise board. Each county officer may designate the number of deputies to be employed and may fix their rates of compensation, provided that no such employment shall exceed the amount of lawful funds appropriated for such purpose. County officers have no authority to make salary commitments beyond the amount of funding provided by the county excise board and county officers are not entitled to supplemental salary appropriations for their offices. County officers are authorized to pay their deputies eighty percent (80%) or ninety percent (90%) of the principal officer's salary without the approval of the board of county commissioners. However, in those instances where a county officer employs only two deputies or technical help on a part-time contract or wage basis within the amount of appropriations provided by the county excise board, the officer may pay an employee in excess of eighty percent (80%) by and with the consent and approval of the board of county commissioners. (MICHAEL CAUTHRON) (ksg) ** SEE: OPINION NO. 92-558 (1992) (UNPUBLISHED) ** ** SEE: OPINION NO. 80-166 (1980) — THIS MODIFIES THIS OPINION ** ** SEE: OPINION NO. 80-269, 80-295 (1980) **