Untitled Texas Attorney General Opinion ( 1986 )

December 29, 1986
Honorable Pablo Avila Opinion No. JM-599
Zavala County Attorney
Zavala County Courthouse Re: Validity of Zavala County
Crystal City, Texas 78839 personnel policy concerning salary
of new employees
Dear Mr. Avila:
You request advice on a provision of the 1984 Zavala County
Personnel and Operating Policies adopted by the Commissioners Court of
Zavala County at their January 9, 1984 meeting. The Personnel and
Operating Policies is a five-page document which includes provisions
on working conditions of county employees such as sick leave, annual
leave, holidays, and travel expenses. It also covers purchasing and
budgeting procedures, vehicle and equipment repair and other county
operating policies. You question the validity of the underlined
provision on new employees:
NEW EMPLOYEES: No vacancy in any department may
be filled without prior Commissioners' Court
approval. Any new/replacement employee hired
during year salary to be $1,000 less than regular
employee with a $1,000 increase in salary after
six (6) months employment. (Emphasis added).
We understand this policy to require new or replacement employees to
work for six months before achieving the salary level of existing
county employees in the same position.
You first suggest that the commissioners court did not give
adequate notice that its meeting would consider the above provision
and, therefore, the provision was adopted in violation of the Open
Meetings Act, article 6252-17, V.T.C.S. Section 3A of the Open
Meetings Act requires that written notice be given of the subject of
each meeting held by a governmental body. Actions taken by a govern-
mental body on a matter not stated in the notice are subiect to
judicial idvalidation. V.T.C.S. art. 6252-17, §3A(a); LowCr Colorado
River Authority v. City of San Marcos. 523 S.W.2d 641, 646 (Tex.
1975).
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Honorable Pablo Avila - Page 2 (24-599)
The agenda posted to give notice of the January 9, 1984 meeting
includes the following item, under which the commissioners court
adopted the Personnel and Operating Policies which included the
provision on new employees:
9. Adoption of 1984 County Personnel Policy
and County Holidays.
Notice of a public meeting should "alert a reader to the fact
that some action would be considered" with resoect to the subiect in
question. Lower Colorado River Authority v. City of San Marc&, 523
S.W.2d 641. 646 (Tex. 1975). The courts have also said that the
notice provisions of the Open Meetings Act are subject to substantial
compliance. See, e.g., Coates v. Windham, 613 S.W.2d 572, 577 (Tex.
Cl". App. - Austin 1981, no writ); McConnell v. Alamo Heights Indepen-
dent School District, 576 S.W.2d 470 (Tex. Civ. App. - San Antonio
1978, writ ref'd n.r.e.); Stelzer v. Huddleston, 526 S.W.2d 710 (Tex.
Cl". App. - Tyler 1975, Cox Enterprises, Inc.
v. Board of Trustees of the Austin Independent School District, 706
S.W.2d 956 (Tex. 1986). The Supreme Court has recently made the
following statement on substantial-compliance:
We have held that general notice in certain
cases is substantial compliance even though the
notice is not as specific as it could be. See
Lower Colorado River Authority v. City of G
Marcos, 523 S.W.2d 641 (Tex. 1977), and Texas
Turnpike Authority v. City of Fort Worth, 554
S.W.2d 675 (Tex. 1977). However, less than full
disclosure is not substantial compliance. OUS
prior judgments should have served as notice to
all public bodies that the Open Meetings Act
requires a full disclosure of the subject matter
of-the meetings. The Act is intended to safeguard
the public's interest in knowing the workings of
its governmental bodies. (Emphasis added).
Cox Enterprises, Inc. v. Board of Trustees of the Austin Independent
School District, supra. See also Texas Turnpike Authority v. City of
Fort Worth, 554 S.W.2d 675 (Tex. 1977) (it is unnecessary to post
copies of proposed resolutions or to state all of consequences which
may flow from consideration of subject).
Whether a governmental body has substantially complied with the
notice provisions of the Open Meetings Act requires an application of
the law to the facts of the particular case. We have set out the
legal standards pertaining to notice, but have not been provided with
enough information to answer your question definitively. We cannot
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Honorable Pablo Avila - Page 3 (JM-599)
investigate and resolve fact questions in the opinion process, and
accordingly, do not answer your first question.
Assuming that the provision on new employees' salaries was
adopted in substantial compliance with the notice requirements of the
Open Meetings Act, you ask whether the commissioners court has
authority to enact and implement this policy. Article 3912k.
V.T.C.S., provides as follows:
Section 1. Except as otherwise provided by
this Act and subject to the limitations of this
Act, the commissioners court of each county shall
fix the amount of compensation, office expense,
travel expense, and all other allowances for
county and precinct officials and employees who
are paid wholly from county funds, but in no event
shall such salaries be set lower than they exist
at the effective date of this Act.
. . . .
Sec. 2. (a) The salaries, expenses, and other
allowances of elected county and precinct officers
shall be set each year during the regular budget
hearing and adoption proceedings on giving notice
as provided by this Act.
Attorney General Opinion H-11 (1973) determined that the
commissioners court had authority under .article 3912k, V.T.C.S., to
amend its budget to increase employees' salaries at any time of the
year, without going through the budgeting procedures required by
article 689a-11, V.T.C.S. This article provides in part:
When the budget has been finally approved by the
Commissioners' Court . . . no expenditure of the
funds of the county shall thereafter be made
except in strict compliance with the budget as
adopted by the Court. Except that emergency
exoenditures. in case of grave public necessity,
to' meet unusual and unfo~eseen~conditions which
could not, by reasonably diligent thought and
attention, have been included in the original
budget, may from time to time be authorized by the
Court as amendments to the original budget.
(Emphasis added).
V.T.C.S. art. 689a-11. Article 3912k, section 1. V.T.C.S., provides
an implied exception to article 689a-11 for the fixing of non-elected
employees' salaries. Attorney General Opinion H-11 (1973). Thus, we
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Honorable Pablo Avila - Page 4 (34-599)
need not consider whether article 689a-11, V.T.C.S., even applies to
actions by the commissioners court which reduce expenditures from the
county budget. See V.T.C.S. art. 689a-20; Rains v. Mercantile Naticnal
g, 188 S.W.2d798 (Tex. Civ. App. - El Paso 1945). aff'd, 191
S.W.2d 850 (Tex. 1946). The commissioners court has authority under
article 3912k, V.T.C.S., to reduce the compensation of new or
replacement employees as long as the salaries are set no lower than
they were on the January 1, 1972 effective date of the statute.
V.T.C.S. art. 3912k, $1. -See Attorney General Opinion H-39 (1973).
You finally ask whether the county policy, assuming that the
county had authority to adopt it, can be applied to a deputy district
clerk appointed by the district clerk. The coxunissionerscourt has
authority to fix the salaries of deputy clerks under article 3912k,
section -1, V.T.C.S. See Renfro v. Shropshire, 566 S.W.2d 688 (Tex.
Cl". APP.
__ - Eastlanr1978. writ ref'd n.r.e.1. Article 3902,
V.T.C.S., however, prohibits the commissioners court from influencing
the selection of any person as a deputy clerk. Id.; see also Attorney
General Opinions E-1113 (1978); H-697 (1975).
SUMMARY
A commissioners court has authority under
article 3912k, V.T.C.S.. to decrease the salaries
payable to new or replacement county employees at
any time of the year, as long as the salaries are
set no lower than they were on January 1, 1972.
J*h
Very truly yours,
.
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
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