Untitled Texas Attorney General Opinion ( 1989 )

THE ATTORNEY GENERAL
0F TEXAS
September 20, 1989
Ms. Brenda Milligan Opinion No. JM-1099
Montague County Auditor
P. 0. Box 56 Re: Whether a county auditor
Montague, Texas 76251 may require elected officials
and department heads to provide
details about employees' hours
worked and leave taken (RQ-1548)
Dear Ms. Milligan:
You ask whether the county auditor can require elected
officials and department heads to submit time sheets showing
the total number of hours worked by county employees during
the pay period, the amount of.sick leave and vacation leave
taken, and the number of overtime and compensatory hours
worked.1 As this opinion will explain, we believe the
county auditor may require county officers and department
heads to submit the data you describe, provided such action
is not inconsistent with a rule or form prescribed by the
comptroller of public accounts under section 112.003 of the
Local Government Code. Before discussing the reasons for
our conclusion, we will briefly review the circumstances
leading to this opinion request.
You inform us that following the issuance of Attorney
General Opinion JM-911 (1988) your office and the office of
the county treasurer for Montague County sought to consoli-
date all payroll functions for the county in the office of
the county treasurer. As part of this effort, new
timesheets were adopted for use by county officials which
request the information described above for each employee of
a particular office for a given pay period, as well as
1. Your question is submitted pursuant to section
402.042(b)(8) of the Government Code following receipt of
the written opinion of the District Attorney of the 97th
Judicial District. Gov’
t Code 5 41.007.
P. 5755
MS. Brenda Milligan - Page 2 (JM-1099)
or to
be charged against an employee's pay.2 You further
inform us that the county sheriff has refused to use the new
timesheets. His refusal, you say, is based on his assertion
that he alone, as head of his department, is responsible for
determining an employee's entitlement to a salary and that
the county treasurer has no need for the information
requested on the timesheets.
In a separate letter, the county sheriff maintains that
neither the county auditor nor the county treasurer may
require him or any other county officer to submit the
timesheets you describe. He views this requirement as
nothing more than an attempt by the county auditor and
county treasurer to control county personnel policy and to
usurp the powers of the commissioners court and individual
county officers. The sheriff acknowledges the county
auditor's duty to determine whether an individual employee
is performing the work for which he or she is being paid but
suggests this duty ends once the commissioners court
authorizes payment of the employee's salary. He also cites
article 1709a, V.T.C.S. (now repealed and recodified in
relevant part as section 113.042(a) of the Local Government
Code), and concludes that the county treasurer's duty to
endorse warrants if sufficient funds are available precludes
the treasurer from requiring any further information
concerning an employee's salary.3
In Attorney General Opinion JM-911 (1988) we determined
that the county auditor for Harris County was not authorized
to prepare the county payroll and print and distribute
county paychecks. We understood these responsibilities to
be part of the core functions of the constitutional office
of county treasurer but subject to the legislature's power
under article XVI, section 44, of the Texas Constitution to
2. In your request letter you also wrote that the form
you proposed would require the signatures of the employee
and the department head and the employee's social security
number. The form you later submitted for our review,
however, does not ask for these items.
3. It should be noted that neither the sheriff nor the
district attorney offers any legal basis for the conclusion
that the auditor may not require a county officer to submit
time sheets for their employees.
P. 5756
Ms. Brenda Milligan - Page 3 (JM-1099)
under article XVI, section 44, of the Texas Constitution to
prescribe the duties of the office. The legislature, in
three sections of the Local Government Code, expressly
authorized county officers in certain counties, including
Harris County, to prepare the payroll and issue warrants and
draw checks in payment of salaries. See Local Gov't Code
5s 113.047, 151.903, 154.043. We also concluded that the
ministerial aspects of these duties, such as preparation of
the payroll and salary warrants, could be delegated to the
county treasurer but not to the county auditor.
Attorney General Opinions JM-986 (1988) considered the
extent to which Attorney General Opinion JM-911 was applic-
able to counties with lesser populations. Because there
were no laws authorizing county officers to prepare the
payroll in counties with populations of 500,000 or less, we
concluded that the county treasurer was the appropriate
official to prepare the county payroll for commissioners
court approval and make deductions from the compensation of
county employees. In counties with populations of 190,000
or less, we said that the commissioners court was respons-
ible for approving the county payroll and issuing warrants
in payment of salaries: these duties could not be delegated
to either the county treasurer or the county auditor. The
treasurer could, however, be delegated the ministerial task
of preparing salary warrants following the commissioners
court's order authorizing their issuance. We also concluded
that the commissioners court could not draw checks in
payment of salaries. Attorney General Opinion JM-986 is
especially relevant to Montague County which, according to
1980 census figures, had a population of less than 18,000.
We mention these opinions because they apparently
motivated your actions and those of the county treasurer.
These opinions, however, did not conclude that either the
county auditor or the county treasurer was responsible for
adopting, implementing, or enforcing county personnel
policy. Rather, the opinions dealt only with ministerial,
nondiscretionary tasks associated with the county payroll.
The courts readily acknowledge the broad power of county
officers to manage the affairs of their offices:
Because of the unique structure of county
government in Texas, [an elected county
official] holds virtually absolute sway over
the particular tasks or areas of responsibil-
ity entrusted to him by state statute and is
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Ms. Brenda Milligan - Page 4 (JM-1099)
accountable to no one other than the voters
for his conduct therein.
Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.
1980) (citations omitted). The powers of county officers,
including the county sheriff, over personnel matters is also
quite extensive, subject to appropriate constitutional and
statutory restraints. See McBee v. Jim Hooq Countv, 730
F.2d 1009 (5th Cir. 1984) (discussing constitutional prin-
ciples affecting sheriff's decision to reappoint or not to
reappoint subordinates of predecessor in office); Barrett v.
Thomas, 649 F.2d 1193, 1199 (5th Cir. 1981), cert. denied,
102 S. Ct. 1969 (1982) ("Sheriffs, like other elected county
officials in Texas, have indisputably wide-ranging discre-
tion in the selection of their employees."). Attorney
General Opinions JM-911 and JM-986 therefore should not be
viewed as endorsements of the proposition that the county
auditor and county treasurer are generally responsible for
the administration of county personnel policy.
Because of the broad authority of county officers to
direct personnel matters in their respective offices, we
must look to the powers and duties of the county auditor to
determine whether the auditor may make the kind of inquiry
you ask about. Section 84.006 of the Local Government Code
prescribes the qualifications for the office of county
auditor. The county auditor must be a person of unquestion-
able character and intelligence, thoroughly competent in
public business details, and must be a competent accountant
with at least two years experience in accounting and
auditing. Local Gov't Code 5 84.006. The county auditor
must file a bond conditioned on the faithful performance of
his official duties, take the official oath, and submit a
written affirmation that states, among other things, that he
will not be personally interested in a contract with the
county. Id. § 84.007.
The duties of the county auditor are spread throughout
the Local Government Code. In a county with a population of
less than 190,000, the county auditor is authorized to adopt
and enforce regulations he considers necessary for the
"speedy and proper collecting, checking, and accounting" of
county funds. Id. 5 112.001. These regulations may not be
inconsistent with law or regulations adopted by the
comptroller of public accounts pursuant to section 112.003
prescribing the manner of keeping and accounting for state
funds. Id. He is given general oversight of the books and
records of all county, district, and state officers auth-
P. 5758
Ms. Brenda Milligan - Page 5 (JM-1099)
orized to collect or receive money or property belonging to
the county. Id. 5 112.006(a). He must maintain accounts
for such purposes and must keep records of county financial
transactions. Id. 55 112.005, 112.007. The county auditor
must also "see to the strict enforcement of the law
governing county finances." Id. § 112.006(b).
The county auditor possesses substantial authority to
audit county finances. Seeid. 55 115.001 - 115.004. The
auditor also bears significant duties concerning the
expenditure of county funds. Claims against the county may
not be paid until the auditor has examined and approved
them. Id. 5 113.064(a). The auditor may not audit or
approve a claim unless it was incurred as provided by law.
Id. § 113.065. Additionally, a county check or warrant may
not be paid unless it is countersigned by the county auditor
to validate it as a proper and budgeted item of expenditure.
Id. § 113.043.
It might be argued that the county auditor's duty to
approve claims against the county for salaries and wages
grants the auditor the implied power to demand the infor-
mation in question here. If the auditor has the discretion
to approve or disapprove such claims, then the auditor cer-
tainly should be allowed to obtain information necessary to
make that determination. But if the auditor's duty is
purely ministerial, there is little need for information
regarding a person's entitlement to a salary.
The opinions of the courts and of this office are
divided on this issue. Several conclude that the auditor is
under a ministerial duty to approve salary payments ordered
by the commissioners court and that salary payments are not
claims subject to the approval or disapproval of the audit-
or. See Jackson v. Leonard, 578 S.W.2d 879 (Tex. Civ. APP.
- Houston [14th Dist.] 1979, writ ref'd n.r.e.); Nacosdoches
County v. Jinkins, 140 S.W.2d 901 (Tex. Civ. App. - Beaumont
1940, writ ref'd); Attorney General Opinion M-40 (1967).
Others hold that the auditor has discretion to disapprove
salary payments. See Smith v. McCoy, 533 S.W.2d 457 (Tex.
Civ. App. - Dallas 1976, writ dism'd). See also Love11 v.
&?JQ, 315 S.W.2d 20 (Tex. Civ. App. - Austin 1958, writ
ref'd n.r.e.). The third and most recent group of opinions
harmonize these two lines of analysis and conclude that
where an individual's right to a salary is established as a
matter of law, the auditor is under a ministerial duty to
approve the payment. See Attorney General Opinions JM-986
(1988); JM-192 (1984).
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Ms. Brenda Milligan - Page 6 (JM-1099)
We believe the last group of opinions most reasonably
and accurately reflects the state of the law concerning the
county auditor's duty to approve salary payments. In Smith
v. McCoy, for example, the court upheld the county auditor's
refusal to approve payment of back wages to deputy sheriffs
when their entitlement to the wages had not been established
as a matter of law. The county sheriff requested the depu-
ties be paid for a period in which they had been suspended
from their jobs. After the auditor's initial rejection of
the request, the commissioners court ordered payment of the
back wages, but the auditor again withheld his approval.
533 S.W.2d at 458-459. Had the deputies' entitlement been
established as a matter of law, say, in court or in civil
service proceedings, the auditor would have been under a
ministerial duty to approve the payment of back wages. &
Attorney General Opinion JM-192 (1984).
Though it is arguable that the county auditor has
discretion to approve or disapprove salary payments pursuant
to section 113.064 of the Local Government Code, we believe
the auditor nevertheless may require county officials to
supply basic information necessary to the accomplishment of
other duties. This office has determined on previous occa-
sions that the county auditor bears primary responsibility
for establishing financial procedures and internal account-
ing controls for the county. See Attorney General Opinions
M-579 (1970); C-276 (1964). Attorney General Opinion O-6624
(1945) concluded that the county auditor, pursuant to his
duty to see to the strict enforcement of the law governing
county finances, could inquire whether an employee of the
county was actually performing duties for which the employee
was being paid. The inquiry you propose is far less
intrusive but may be justified on the same grounds. Even if
it is assumed that the auditor is under a ministerial duty
to approve payment of salaries, the auditor by necessity
must be capable of determining whether an employee is
entitled as a matter of law to a salary payment.
An obvious example of the county auditor's need for
basic payroll information is when a county officer
authorizes a salary payment to an employee who was absent
from his workplace during the pay period. Without such
information, the auditor could only speculate whether the
employee was entitled to payment on the basis of hours
actually worked or hours earned as vacation, sick, or com-
pensatory leave, or whether the employee was entitled to
payment at all. A reporting requirement like the one you
propose for Montague County is fully consistent with the
P. 5760
, Ms. Brenda Milligan - Page 7 (JM-1099)
county auditor's role in the system of checks and balances
created for county finances. See Smith v. McCoy suvra;
Attorney General Opinion JM-911 (1988). AccordiAgly, we
conclude that the county auditor may require county officers
to supply basic payroll information on forms designed by the
county auditor, provided such requirement * not
inconsistent with a rule or form prescribed i; the
comptroller of public accounts pursuant to section 112.003
of the Local Government Code.
As for the sheriff's assertion that the timesheet
requirement is nothing more than an attempt to dominate
county personnel practices, we should emphasize once more
that neither this opinion nor the authorities discussed in
it augment the power of either the county auditor or the
county treasurer over county personnel matters. The same
may be said with respect to the enforcement of the federal
Fair Labor Standards Act (FLSA), 29 U.S.C. 35 201-219. YOU
voice concern about compliance with the FLSA by the various
county offices, but you do not indicate which provision of
the FLSA or any other law gives the county auditor or county
treasurer this responsibility. Again, we are aware of no
provision of law that makes either the county auditor or the
county treasurer generally responsible for the county's
compliance with the FLSA. See. e.a C.F.R. Part
(applying FLSA to employees of state aAd2Tocal governmen:zj
imposing duties on "public agencies" rather than a specific
office or officer).
To summarize, we conclude that county officers may be
required to supply the basic payroll information YOU
describe on forms supplied by your office, provided such
action is not inconsistent with a rule or form adopted by
the comptroller of public accounts under section 112.003 of
the Local Government Code.
SUMMARY
The county auditor in a county with a
population of less than 190,000 may require
county officials and department heads to sub-
mit information on forms designed or adopted
by the county auditor and showing (1) the
number of hours worked by county employees
during a particular pay period, (2) the
amount of vacation or sick leave taken, the
number of hours credited or charged as
P. 5761
Ms. Brenda Milligan - Page 8 (JM-1099)
overtime, compensatory time, or holidays, and
(3) the number of hours charged against an
employee's pay, if any, provided such
requirement is not inconsistent with a rule
or form prescribed by the comptroller of
public accounts pursuant to section 112.003
of the Local Government Code.
LJ h.J=
Very truly yo ,
A;,
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Steve Aragon
Assistant Attorney General
P. 5762