Could a commissioners court award premium pay to elected officials prior to the clarifying Final Rule’s effective date of April 1, 2022?
Probably not. The U.S. Treasury would determine whether a particular use of ARPA/SLFRF premium pay is an "eligible" use, subject to federal judicial review.
Before the Treasury issued its Final Rule on Jan. 6, 2022 (effective April 1, 2022), there was no clarification about the conflicts of interest rationale for prohibiting premium pay to officials.
That said, TAC staff have consistently commented on the definition of "eligible workers" authorized to receive ARPA/SLFRF premium pay and maintained the position that county elected officials are not "eligible workers" for purposes of ARPA/SLFRF premium pay. Multiple examples of "eligible workers" are listed in the Interim Rule: staff at nursing homes, hospitals and home care settings; farm, grocery store and food production workers; janitors and sanitation workers; public health and safety staff; child care workers, educators and school staff; and social service and human services staff. Elected officials are not typically categorized as staff or workers and do not come within the scope of the definition of "eligible worker" set forth in the Interim Rule.
No Texas court nor the Texas Attorney General has analyzed whether elected officials are "eligible workers" as set forth in the Interim Rule. However, consistent with commentary provided by TAC staff, in LA Attorney General (AG) Opinion No. 21-0101 the Louisiana State AG found elected officials were not the front-line workers contemplated by the definition of "eligible workers" outlined in the federal guidance.
Additionally, county officials should consider applicable state law. Art. III, §53 of the Texas Constitution prohibits awarding ARPA/SLFRF premium pay to elected officials and employees for services rendered in the past. At this time, no court nor the Texas AG has provided an opinion about the implications of Art. III, §53's prohibition on retroactive pay in context of ARPA/SLFRF premium pay.
Other states and entities considering provisions similar to Texas's Art. III, §53 retroactive pay prohibition concluded such payments are not allowed.