Wednesday, December 22, 2010

Open Records Request: Sheriff Receives Money He's Not Entitled To Receive From Amended Contract He Can't Supervise

According to information obtained in a Texas Open Records Act request, McLennan County Sheriff Larry Lynch is heading into a new fiscal year on the budget to receive supplemental fees from a contract that could not be executed without his consent.

That contract includes a provision for supplementing the salary of the sheriff, but the supplement is contingent on prisoners being housed at the downtown jail and receipt of fees from the lease of that facility. It was revealed in Commissioners’ Court last Tuesday that CEC is $240,000 in arrears, so the money was not received. This is a contingency of the sheriff receiving the supplement.

CEC (Civigenics), Inc., the private jail contractor to which the Commissioners Court has leased its downtown jail and Jack Harwell Detention Center, is on the hook for a total of $12,000 in two separate accounts earmarked for the Sheriff – each for $6,000

They are: $6,000 in Fund 1 department 245600, account 411250, Page 105 of the preliminary budget FY 2011; and $6,000 in Fund 1 Department 255710, account 411250, Page 111 of the preliminary budget FY 2011. These accounts concern the “care and feeding of prisoners.”

This is in defiance of state law and an Attorney General's Opinion solicited by a legislative committee chairman.

Yvonne Davis, chairman of the Urban Affairs Committee of the Texas House of Representatives asked the attorney general for an opinion on the matter of how Sheriffs are to be paid.

Attorney General Greg Abbot answered this way in GA 0706,”...county sheriffs must be compensated on a salary basis. A sheriff, paid on a salary basis, "receives the salary instead of all fees, commissions, and other compensation the officer would otherwise be authorized to keep." Tex. Loc. Gov't Code Ann. § 154.002 (Vernon 2008) ...

“Accordingly, we conclude that neither the Texas Constitution, nor Texas statutes authorize a county sheriff to accept from a private organization an administrative fee such as you have described.”

Does acceptance of an administrative fee constitute a financial interest?

“Because of our conclusion that there is no authority for a sheriff to accept the fee described, we need not address this question.”

Is it a violation of criminal law to do so?

Mr. Abbott said that is a matter best left up to a judge. Take it to court in criminal litigation, he answered. That is how you get the answer to that question.

According to a contract amendment made in June of this year, federal prisoners at the downtown Courthouse Annex Jail were transferred to the Jack Harwell Detention Center on Highway 6 because of a lack of revenue stream to help defray the sinking fund of the debt service on the $49.9 million project, an 816-bed jail.

Therefore, under the terms of the contract, no funds may be paid to the Sheriff unless lease payments are derived from the contractor, CEC (Civigenics), Inc., “subject to and contingent upon” receipt of lease payments.

Quite simply, the Commissioners Court waived payment of the lease fees by amending the contract on June 14. They meet on this coming Tuesday to make a decision whether to extend the amendment, or to resume the contractual obligation to board federal prisoners in the 326-bed downtown jail.

There are no prisoners lodged at the downtown jail upon which to collect supplemental salary fees for their boarding.

According to the Fiscal Year 2011 budget:

"Sheriff's Supplemental Salary - Contract Jail Administration. In addition to the Sheriff's budgeted salary of $92,881 per year, he is entitled to an amount up to $1,000 per month for detention monitoring subject to, and contingent upon actual receipt of monitoring reimbursement under the Facility Lease, Opeation & Management Agreement regarding the housing of Federal Prisoners at the Downtown Jail Facility."

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