City bonuses illegal?

Mr. Wever’s comment the other day got us to thinking about what the city did last year with the “one-time” bonuses they gave to all employees.

The August 3, 2015 edition of the Times told us that the city council voted to give $2.6 million dollars in year end bonuses to city employees.  This is a link to the article.

Texas Constitution

The Legislature shall have no power to grant, or to authorize any county or municipal authority to grant, any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered, or a contract has been entered into, and performed in whole or in part; nor pay, nor authorize the payment of, any claim created against any county or municipality of the State, under any agreement or contract, made without authority of law. Tex. Const. art. III, § 53.

After service has been rendered

You simply cannot pay a government employee in Texas in arrears.

Where was the city’s legal department when this happened?

We deserve better

Brutus

 

12 Responses to City bonuses illegal?

  1. […] to this post by Brutus over there at ElPasoSpeak.com, those bonuses the city doled out back in August of 2015 […]

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  2. Jim Tolbert says:

    I will ask legal about this.

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    • WTF says:

      like you asked about your free steak ?

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    • Waiting says:

      and…..? We’re waiting to hear the response. I’m sure the response will be that it’s complicated and requires research, which is code for “if the city stalls long enough, people will forget about it.”

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  3. Friends of Ray Gilbert says:

    You would think with 17 attorneys and 9 paralegals on the payroll, we would not think twice about legality but here we go again. Where is the Mayor and the Council. Have they no shame?

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  4. Haiduc says:

    Pay for work play?

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  5. Dan Wever says:

    Superintendent Caberea’s being given 15 extra vacation days and 20 extra sick days did not have a valid public purpose IMHO and I submitted a complaint to TEA but have heard nothing from them. There were also retroactive actions in the contracts that were illegal.

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  6. Dan Wever says:

    GREG ABBOTT, Attorney General of Texas.

    The Honorable Russell W. Malm Midland County Attorney 200 West Wall Street, Suite 104 Midland, Texas 79701

    Re: Whether a county is authorized to pay a performance-based bonus to elected officials (RQ-0686-GA)

    Dear Mr. Malm:

    You relate that the Midland County Judge would like to adopt “a plan which would authorize performance-based bonuses for elected officials.” You explain how this bonus plan for elected officials would work:

    Letter from Honorable Russell W. Malm, Midland County Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Mar. 6, 2008) (on file with the Opinion Committee, also available at http://www.texasattorneygeneral.gov) [hereinafter Request Letter].

    Under this plan, the bonuses would be based upon some quantifiable system of measuring performance. If an elected official meets the stated performance goals during the budget year, a bonus would be awarded at that time. The plan would be approved by the Commissioners Court during the regular budget hearing and adoption proceedings, but the bonuses would be paid during the budget year. The bonus would not be paid unless the elected official met the stated performance goal.
    Request Letter, supra note 1, at 1. Specifically, you ask whether the “county [may] pay a performance bonus to elected officials in addition to their salary,” and if so, in what manner the Commissioners Court should “list the bonus in the publication of proposed salary increases.” Id.

    The commissioners court is the governing body of a county, but it exercises only those powers expressly conferred by the Texas Constitution or statutes or those powers necessarily implied therefrom. See City of San Antonio v. City ofBoeme, 111 S.W.3d 22,27-28 (Tex. 2003); Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948). Among those powers is the authority, with certain exceptions, to “set the amount of the compensation, office and travel expenses, and all other allowances for county and precinct officers and employees who are paid wholly from county funds.”

    TEX. LOC. GOV’T CODE ANN. § 152.011 (Verrion 2008). “Under section 152.011, the court may confer upon county officers and employees such benefits as longevity pay, vacation leave, sick leave, and paid holidays.” Tex. Att’y Gen. Op. No. GA-0303 (2005) at 2.

    In considering the propriety of bonus awards to county employees, this office has said that “[a] bonus may be paid to a county employee only if the commissioners court has approved the bonus plan as part of compensation before the services are rendered,” so as not to violate article III, section 53 of the Texas Constitution. Tex. Att’y Gen. Op. No. JM-1253 (1990) at 2-3 (emphasis added); see TEX. CONST, art. Ill, § 53 (“The Legislature shall have no power to grant, or to authorize any county . . . to grant, any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered. . . .”). See also Tex. Att’y Gen. Op. Nos. JC-0376 (2001) at 4 (“Retroactive increases in compensation [paid to employees of a county court] for services already rendered violate article III, section 53 of the Texas Constitution. Prospective increases in compensation do not.”); GA-0492 (2006) at 2 (“a county may provide bonuses based on performance if the county approved a bonus plan before employee recipients performed the work for which the bonuses are given”) (emphasis added). This office has never been asked about a county’s authority to adopt a bonus plan for elected county officials, however, and we find no Texas court decisions on the issue. Your question is thus one of first impression, and given its novelty, we limit our response to the bonus plan you describe, which is conditioned on the accomplishment of performance goals established by the Commissioners Court.

    Despite a commissioners court’s extensive authority in county budgetary matters, it does not follow that a commissioners court may set performance goals, and pay bonuses contingent upon achievement of those performance goals, for independently elected county officials. “[E]lected county officials hold `virtually absolute sway over the particular tasks or areas of responsibility entrusted to [them] by state statute.'” Hooten v. Enriquez, 863 S.W.2d 522, 531 (Tex.App.-El Paso 1993, no writ) (quoting Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)). “In Texas, an elected officer occupies a sphere.of authority, which is delegated to that officer by the Constitution and laws, which another officer may not interfere with or usurp.” Abbott v. Pollock, 946 S.W.2d 513,517 (Tex.App.-Austin 1997, pet. denied) (citing Pritchard Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961)); see Renken v. Harris County, 808 S.W.2d 222, 226 (Tex.App.-Houston [14th Dist] 1991, no writ). The sphere-of-authority limitation on a commissioners court’s powers is “founded in the policy that elected officers . . . discharge the public trust and carry the responsibility for the proper discharge of that trust.” Abbott, 946 S.W.2d at 517.

    Elected county offices are, for the most part, established by the Texas Constitution. See, e.g., TEX. CONST, art. V, § 18 (constable); id art. V, § 19 (justice of the peace); id art. V, § 20 (county clerk); id art. V, § 21 (district and county attorney); id. art. V, § 23 (sheriff); id. art. XVI, § 44 (treasurer and surveyor).

    Prior opinions of this office have established that an officer’s sphere of authority encompasses the power to “determinfe] how to deploy the resources placed at his disposal,” to hire and dismiss employees of the officer’s choosing without interference from the commissioners court, to set the officer’s employees’ work schedule, and to assign employees as the officer sees fit to accomplish the duties of his office. Tex. Att’y Gen. Op. No. JC-0214 (2000) at 5. In one earlier opinion, this office said that “[a]n elected county official’ s authority to accomplish the constitutional or statutory purposes of his of her office encompasses the authority to dismiss his or her employees for all or part of a day for any reason.” Tex. Att’y Gen. Op. No. JC-0239 (2000) at 7. While “the commissioners court retains control over the budgetary aspects of the county’s employment relationships, . . . the county officer retains control over the accomplishment of his or her constitutional and statutory duties through, among other things, the administration of his or her office.” Id’st 3. See also Tex. Att’y Gen. Op. Nos. GA-0303 (2005) at 2 (elected official may permit his employees to leave the office for holiday shopping or travel without being required to charge such absence to accrued leave); GA-0037 (2003) at 4 (commissioners court may not, during a budget year, “`freeze’ a vacant position by requiring an elected officer to promote an existing county employee or to obtain the court’s” permission to fill the vacancy); JM-521 (1986) at 3 (commissioners court may not set working conditions for other county officials). In sum, the court “may not micro-manage” an elected official’s decisions as to the use of his resources. Tex. Att’y Gen. Op. No. JC-0239 (2000) at 3.

    These examples illustrate, the independent nature of an elected county official’s sphere of authority, his discretion within that sphere of authority, and the lack of the commissioners court’s authority to interfere with that discretion. Although a commissioners court may take into consideration a county official’s performance when it considers the official’s overall budget for the followingyear, we believe that to overtly condition an elected official’s possible future bonus on the achievement of commissioners-court-established performance goals would impermissibly interfere with, and intrude upon, that official’s sphere of authority. Were the official to permit his discretion to be influenced by the court’s performance goals, he might, consciously or otherwise, focus his primary attention on achieving the court’s goals rather than performing his statutory and constitutional duties as he understands them. An elected official’s performance is properly judged by those who elected him.

    Because a bonus plan that is premised on accomplished performance goals set by a commissioners court may improperly interfere with an elected official’s constitutionally based sphere of authority, we cannot advise you that the Commissioners Court is authorized to adopt such apian. Given, this conclusion, we need not address your second question, regarding the manner in which the Commissioners Court should “list the bonus in the publication of proposed salary increases.” Request Letter, supra note 1, at 1.

    SUMMARY
    A bonus plan that is premised on accomplished performance goals set by a commissioners court may improperly interfere with an elected official’s constitutionally based sphere of authority. Thus, we cannot advise that a commissioners court is authorized to adopt such a plan.

    Very truly yours,

    KENT C.SULLIVAN First Assistant Attorney General
    ANDREW WEBER Deputy Attorney General for Legal Counsel
    NANCY S. FULLER Chair, Opinion Committee
    Rick Gilpin Assistant Attorney General, Opinion Committee

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  7. Tickedofftaxpayer says:

    It also brings into question the $60k gift salary bumpup the council gave Tommy Gonzalez since that was above what was outlined in his contract.

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    • Dan Wever says:

      More important for our purposes, section 53 does not prohibit terms of employment that tie compensation to performance. For instance, bonuses are permissible where a bonus plan has been approved as part of compensation before the rendering of services. See Tex. Att’y Gen. Op. No. JC-0376 (2001) at 2 (citing Tex. Att’y Gen. Op. No. JM-1253 (1990) at 2-3).

      This all has to be in writing before the bonus is paid.

      Like

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