Sunday, December 5, 2010

Constitutional Crisis Brewing In McLennan County

7. Commissioners Court, consideration of and/or Action on: ...

c. Discussion and action on amendment of County Investment Policies.
d. Discussion and action on transfer of payroll preparation and benefit administration, including retirement benefits, from the County Treasurer’s Office to the County Auditor’s Office.
e. Discussion and action on any FY 11 budget changes, transfers or amendments necessary to accommodate the transfer of investment and payroll functions to other offices; and any related acts necessary or proper to transition the functions from the County Treasurer’s Office to other offices...

Waco – Local officials who question the credentials of retired State Trooper Danny Volcik to hold down the County Treasurer's office are making their move. A Republican, Mr. Volcik swept veteran Treasurer Bill Helton from office in the mid-term elections.

Mr. Helton is a Democrat.

The qualifications for County Treasurer are to be elected, to not be disqualified, and place a surety bond on file.

McLennan County Commissioners' Court will discuss and take action on procedures to “transition” money-handling functions of the County Treasurer's office at their regular Tuesday morning meeting.

The matter of transferring payroll operations, including deductions of retirement funds, to the County Auditor's office will be handled as a “consent item.”

It's a ticklish area of the law involving ministerial and enumerated responsibilities granted by the Texas Constitution and the state's Government Code, something that has been reviewed in at least one Texas Supreme Court case, which was argued and settled in 1997.

The County Treasurer of Titus County sued the commissioners court when they transferred her duties to the office of the County Auditor. In a series of appeals, the case wound up in the Texas Supreme Court where Mr. Justice James A. Baker held that payroll preparation is “a legislative function for which the Commissioners Court receives broad discretion.” (40 Tex. Sup. Ct. Jour. 31)

The holding affirmed in part the decision of the Court of Appeals (922 S.W.2d 640) in its decision that the collection and deposit of public funds. Under the provisions of Tex. Loc. Gov't Code §113.041(a), “Enumerated or core functions are fundamental to the County Treasurer's Office and the Commissioners Court cannot take core function from the County Treasurer. The Commissioners Court may provide funds for adequate personnel and supplies, if necessary to permit the County Treasurer to perform the function of the office.”

But the holding allowed the transfer of payroll preparation because state law does not reserve this as the exclusive job of the Treasurer.

Though state law gives the ultimate responsibility for the County Auditor's duties to the District Judges and the voters select the County Treasurer, “Our constitution vests appellate jurisdiction and general supervisory control over a County Commissioners Court with the district court subject to such exceptions and under such regulations as the law may prescribe.”

The Justice concluded that “Several other statutes apply to the County Treasurer, but do not grant the County Treasurer exclusive power to perform specific functions. For example, § 155.021 (Tex. Local Gov't Code) considers deductions. That section states, 'the County Treasurer or, if another officer is specified by law, that other officer shall make deductions from, or take other similar actions with regard to, the compensation of county employees...'”

In Tarrant County, the voters abolished the Treasurer's office entirely through an amendment to the state constitution and all duties were transferred to the County Auditor, who now serves as the chief financial officer, reporting directly to the county judge and commissioners court under the appellate jurisdiction of the district judges.

Fayette and Nueces Counties have made similar adjustments by eliminating the office of County Treasurer.

The level of tension between the Commissioners Court and the Treasurer goes back to a previous County Auditor's alleged unilateral action of giving himself a generous raise without first seeking the Court's approval.

Weldon Wells raised his salary to a new level when former Sheriff Jack Harwell signed a contract to allow Civigenics, Inc., which is a New Jersey corporation now named Community Education Centers, to operate the County Jail. In doing so, Sheriff Harwell accepted a monthly stipend of $1,000 from the corporation for a $12,000 per year salary adjustment for his overall supervision of the contract.

Mr. Wells made a decision that he should raise his own salary to be commensurate with the Sheriff's. Treasurer Bill Helton noticed the change in the figures immediately.
The maneuver is said to have cost Mr. Wells his job. As it turns out, the Commissioners Court is in direct supervision of an appointed official such as the County Auditor, as long as it does not abuse its authority.

According to Justice Baker's holding, “Case law defines the scope of the district court's jurisdiction. A party can invoke the district court's constitutional supervisory control over a Commissioners Court judgment only when the Commissioners Court acts beyond its jurisdiction or clearly abuses the discretion conferred upon the Commissioners Court by law.”

Some of the ministerial or “core” duties of the Treasurer prescribed by the Legislature include:

The Local Gov't Code, § 113.001, declares that the Treasurer “shall keep an account of the receipts and expenditures of all money that the treasurer receives by virtue of the office and of all debts due and owed by the county. The treasurer shall keep accurate, detailed accounts of all the transactions of the treasurer's office.”

“The county treasurer shall receive all money belonging to the county from whatever source it may be derived,” declares § 113.002 of the code.

1 comment:

  1. The last time the Commissioners' Court transferred constitutional duties from an elected official to an appointed official, the result was the wholesale issuance of "get out of jail free" PR bonds.