### THE ATTORNEY GENERAL 0F TEXAS

September 20, 1989

Ms. Brenda Milligan Montague County Auditor P. 0. Box 56 Montague, Texas 76251 Opinion No. JM-1099

Re: Whether a county auditor
may require elected officials anddepartment heads toprovide details about employees' hours worked and leave taken (RQ-1548)

DearMs.Milligan:

You askwhether the county auditor can require elected officials anddepartment heads to submit time sheets showing the total number ofhours worked by county employees during thepay period, the amount of.sick leave andvacation leave taken, and the number ofovertime and compensatory hours worked.1 As this opinion will explain, we believe the county auditor **may** require county officers and department heads to submit thedata youdescribe, provided such action isnot inconsistent with arule or formprescribed by the comptroller ofpublic accounts under section 112.003 of the Local Government Code. Before discussing the reasons for

our conclusion, wewill 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 forMontague County sought to consolidate allpayroll functions for the county inthe office of the county treasurer. As part of this effort, new timesheets were adopted foruseby county officials which request the information described above foreach employee of

aparticular 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 thewritten opinion of the District Attorney of the 97th Judicial **District. Gov** **’ t**  Code 541.007.



### P.5755MS. 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 touse the new timesheets. His refusal, you say, isbased onhis assertion thathe alone, ashead ofhis department, isresponsible for determining anemployee's entitlement to a salary and that the county treasurer has no need for the information requested on the timesheets.

Ina 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 todetermine whether an individual employee isperforming thework forwhich he or she isbeing 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. (nowrepealed 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 ifsufficient funds are available precludes the treasurer from requiring any further information concerning anemployee's salary.3

InAttorney General Opinion JM-911 (1988)we determined that the county auditor forHarris County was not authorized toprepare the county payroll and print and distribute county paychecks. We understood these responsibilities to bepart of the core functions of the constitutional office of county treasurer but subject to the legislature's power under article XVI, section 44, of theTexas Constitution to

2. Inyour request letteryou alsowrote that the form
youproposed 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 forthese **items.**

3. It should be noted that neither the sheriff nor the district attorney offers any legalbasis forthe conclusion that the auditor may not require acounty officer to submit time sheets for their employees.

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under article XVI, section 44, ofthe Texas Constitution to prescribe the duties of the office. The legislature, in three sections of the Local Government Code, authorized county expressly officers in certain counties, including Harris County, toprepare thepayroll and issuewarrants 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 aspreparation of thepayroll 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 towhich Attorney General Opinion JM-911 was applicable to counties with lesserpopulations. Because there

were no laws authorizing county officers to prepare the payroll incounties 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 andmake deductions from the compensation of county employees. In counties with populations of 190,000

or less,we said that the commissioners court was responsible forapproving the county payroll and issuing warrants inpayment of salaries: these duties could notbe delegated to either the county treasurer or the county auditor. The treasurer could, however, bedelegated theministerial task ofpreparing 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 toMontague Countywhich, according to 1980 census figures, had apopulation 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 onlywith ministerial, nondiscretionary tasks associated with the county payroll. The courts readily acknowledge thebroad power of county officers tomanage the affairs of their offices:

Because of the unique structure of county government in Texas, [an elected county official] holds virtually absolute sway over theparticular tasks orareas of responsibility entrusted tohimby state statute and is

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accountable tono one other than the voters forhis 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, overpersonnel matters isalso quite extensive, subject to appropriate constitutional and statutory restraints. See McBee v. Jim Hooq Countv, 730 F.2d 1009 (5thCir. 1984) (discussing constitutional principles affecting sheriff's decision to reappoint ornot to reappoint subordinates ofpredecessor inoffice); Barrett v. Thomas, 649 F.2d 1193, 1199 (5thCir. 1981), cert. denied, 102 S.Ct. 1969 (1982) ("Sheriffs, like other elected county officials inTexas, have indisputably wide-ranging discretion in the selection of their employees."). Attorney General Opinions JM-911 and JM-986 therefore should not be viewed as endorsements of theproposition that the county auditor and county treasurer aregenerally 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 andduties 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 aperson ofunquestionable character and intelligence, thoroughly competent in public business details, andmust be a competent accountant with at least two years experience in accounting and auditing. Local Gov't Code 584.006. The county auditor must file abond 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 notbe personally interested ina contract with the county. Id. § 84.007.

The duties of the county auditor are spread throughout the Local Government Code. Inacounty with apopulation of less than 190,000, the county auditor isauthorized to adopt and enforce regulations he considers necessary for the "speedy andproper 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 ofpublic accounts pursuant to section 112.003 prescribing themanner of keeping and accounting for state funds. Id. He isgiven general oversight of thebooks and records of all county, district, and state officers authP. 5758Ms. Brenda Milligan -Page 5 (JM-1099)

orized to collect or receivemoney orproperty belonging to the county. Id. 5 112.006(a). He mustmaintain accounts for suchpurposes andmust 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 notbe paid until the auditor has examined and approved them. Id. 5 113.064(a). The auditormay not audit or approve a claim unless it was incurred asprovided by law. Id. § 113.065. Additionally, a county check orwarrant may notbepaid unless it iscountersigned by the county auditor tovalidate itas aproper andbudgeted item of expenditure. Id. § 113.043.

Itmight be argued that the county auditor's duty to approve claims against the county for salaries and wages grants the auditor the implied power todemand the information inquestion here. Ifthe auditor has the discretion to approve ordisapprove such claims, then the auditor certainly should be allowed to obtain information necessary to make that determination. But ifthe auditor's duty is purely ministerial, there is little need for information regarding aperson'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 aministerial duty to approve salary payments ordered by the commissioners court and that salary payments are not claims subject to the approval ordisapproval of the auditor. See Jackson v. Leonard, 578 S.W.2d 879 (Tex.Civ. APP.

-Houston [14thDist.] 1979,writ ref'd n.r.e.); Nacosdoches County v.Jinkins, 140S.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 Smithv. 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 andmost recent group of opinions harmonize these two lines of analysis and conclude that where an individual's right to a salary isestablished as a matter of law, the auditor isunder aministerial duty to approve thepayment. See Attorney General Opinions JM-986 (1988);JM-192 (1984).

P. 5759Ms. Brenda Milligan -Page 6 (JM-1099)

We believe the last group of opinions most reasonably and accurately reflects the state ofthe law concerning the county auditor's duty to approve salarypayments. In Smith

v.McCoy, for example, the court upheld the county auditor's refusal to approve payment ofbackwages todeputy sheriffs when their entitlement to thewages had notbeen established

as amatter of law. The county sheriff requested the deputiesbe paid for aperiod inwhich theyhadbeen suspended from their jobs. After the auditor's initial rejection of the request, the commissioners court ordered payment of the backwages, but the auditor again withheld his approval. 533 S.W.2d at 458-459. Had thedeputies' 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 thepayment ofback wages. & Attorney General Opinion JM-192 (1984).

Though it is arguable that the county auditor has discretion to approve ordisapprove 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 onprevious occasions that the county auditor bears primary responsibility forestablishing financial procedures and internal accounting controls forthe county. SeeAttorney 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 inquirewhether an employee of the county was actually performing duties forwhich the employee

wasbeing paid. The inquiry you propose is far less intrusive but **may** be justified on the **same** grounds. Even if it isassumed that the auditor isunder aministerial duty to approve payment of salaries, the auditor by necessity must be capable of determining whether an employee is entitled as amatter of lawto 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 whowas absent fromhis workplace during the payperiod. Without such information, the auditor could only speculate whether the employee was entitled topayment on the basis of hours actually worked orhours earned asvacation, sick, or compensatory leave, orwhether 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 inthe 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 * form prescribed i; not inconsistent with a rule or the comptroller ofpublic 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 itaugment the power of either the county auditor or the county treasurer over county personnel matters. The same maybe saidwith respect to the enforcement of the federal Fair Labor Standards Act (FLSA),29U.S.C. 35 201-219. YOU voice concern about compliance with the FLSAby the various county offices, butyou do not indicate which provision of the FLSA orany other lawgives the county auditor or county treasurer this responsibility. Again, we are aware of no provision of law thatmakes 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 byyour office, provided such action isnot inconsistent with a rule or form adopted by the comptroller ofpublic accounts under section 112.003 of the Local Government Code.

SUMMARY

The county auditor ina county with a population of less than 190,000may require county officials anddepartment heads to submit information on formsdesigned 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 ofvacation or sick leave taken, the number of hours credited or charged as

P. 5761Ms. Brenda Milligan -Page 8 (JM-1099)

overtime, compensatory time, orholidays, and (3)the number ofhours charged against an employee's pay, if any, provided such requirement isnot inconsistent with a rule

or form prescribed by the comptroller of public accounts pursuant to section 112.003 of the Local Government Code.

Very truly yo , 

# LJh.J=

A;,
JIM MATTOX Attorney General ofTexas

MARY KELLER FirstAssistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAXLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion **Committee**

Prepared by SteveAragon Assistant Attorney General

P. **5762**