Attorney General Opinion GA-0661

ATTORNEY GENERAL OF TEXAS GREG ABBOTT September 2,2008 The Honorable Russell W. Malm Midland County Attorney 200 West Wall Street, Suite 104 Midland, Texas 79701 Dear Mr. MaIm: Opinion No. GA-0661 Re: Whether a county is authorized to pay a performaIice-based bonus to elected officials (RQ-0686-GA) You relate that the Midland County Judge would like to adopt"aplanwhichwould authorize performance-based bonuses for elected officials.'" You explain how this bonus plan for elected officials would work: 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 Courtduring the regular budgethearing and adoption proceedings, but the bonuses would be paid during the budget year. The bonus would not bepaid unless the elected official metthe 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 marmer the Commissioners Court should "list the bonus in the publication ofproposed salary increases." Id The commissioners court is the governing body of a county, but it exercises only those powers expressly conferred bythe Texas Constitutionorstatutes orthose powersnecessarilyimplied therefrom. See City ofSan Antonio v. City ofBoerne, III 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 andemployees who are paid wholly from countyfunds." lLetter from Honorable Russell W. MaIm, Midland County Attorney, to Honorable Greg Abbott, Attorney General of Texas, at I (Mar. 6, 2008) (on file witb tbe Opinion Committee, also available at http://www .texasattomeygeneral.gov) [hereinafter Request Letter]. The Honorable Russell W. Maim - Page 2 (GA-0661) TEx. Lac. Gov'T CODE ANN. § 152.011 (Veni.on 2008). "Under section 152.011, the court may conferupon countyofficers and employees suchbenefits as longevitypay, vacationleave, sickleave, and paid holidays." Tex. Att'y Gen. Op. No. GA-0303 (2005) at 2.· In considering the propriety ofbonus 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 ofcompensation before the services are rendered," so as not to violate article III, section 53 ofthe Texas Constitution. Tex. Att'y Gen. Op. No. JM-1253 (1990) at 2-3 (emphasis added); see TEx. CaNST. art. III, § 53 ("The Legislature shall have no power to grant, orto 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 perfonnance ifthe county approved a bonus plan before employee recipients perfonned the work for which the bonuses are given") (emphasis added). This office has never been asked about a .county's authorityto adopt a bonus plan for elected county officials, however, and we find no Texas court decisions on the issue. Your question is thus one offirst impression, and given its novelty, we limit our response to the bonus plan you describe, which is conditioned on the accomplishment of perfonnance goals established by the Commissioners Court. Despite a commissioners court's extensive authority in countybudgetarymatters, it does not follow that a commissioners court may set perfonnance goals, and pay bonuses contingent upon achievement of those perfonnance 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.-Austin1997, pet. denied) (citingPritchard&Abbottv. McKenna, 350 S.W.2d 333, 335 (Tex. 1961)); see Renken v. Harris County, 808 S.W.2d 222, 226 (Tex. App.-Houston [14thDist.] 1991, no writ).2 The sphere-of-authority limitation ona commissioners court's powers is "founded in the policy that elected officers ... discharge the public trust and carry . the responsibility for the proper discharge ofthat trust." Abbott, 946 S.W.2d at 517. Prior opinions of this office have established that an officer's sphere of authority encompasses the power to "detennin[e] how to deploy the resources placed at his disposal," to hire and dismiss employees ofthe 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 ofhis office. Tex. Att'y Gen. Op. No. JC-0214 (2000) at 5. In one earlier 'Elected county offices are, for the mostpart, established bythe Texas Constitution. See, e.g., TEx. CONST. art. Y, § 18 (constable); id art. Y, § 19 (justice ofthe peace); id art. Y, § 20 (county clerk); id art. Y, § 21 (district and county attorney); id art. V, § 23 (sherifl:); id art. XVI, § 44 (treasurer and surveyor). The Honorable Russell W. MaIm - Page 3 (GA-0661) opinion, this office said that"[a]nelected county official's authorityto accomplishthe constitutional or statutory purposes ofhis ofher office encompasses the authority to dismiss his or her employees for all or part ofa 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 at 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-52l (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 ofthe 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 following year, we believe thatto overtly condition an elected official's possible future bonus onthe achievement ofcommissioners-court-established performance goals would impermissibly interfere with, and intrude upon, that official's sphere ofauthority. 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 properlyjudged by those who elected him. Because a bonus plan that is premised on accomplished performance goals set by a commissioners courtmayimproperlyinterfere withanelectedofficial's constitutionallybased sphere ofauthority, we cannot advise you that the Commissioners Court is authorized to adopt such a plan. 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 ofproposed salary increases." Request Letter, supra note 1, at 1. The Honorable Russell W. MaIm - Page 4 (GA-0661) SUMMARY A bonus plan that is premised on accomplished performance goals set by a commissioners court may improperly interfere with an elected official's constitutionallybased sphere ofauthority. Thus, we cannot advise that a commissioners court is authorized to adopt such a plan. 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