News Article | July 20, 2022
|"I also heard that prior to issuance of the Treasury's Final Rule, many Texas counties and other local governments questioned whether premium pay for elected officials was allowed. Isn't there a Texas AG Opinion about all this?"|
Does the Texas AG's opinion KP‑0413 say giving premium pay to elected officials is consistent with state law?
No, not really. Texas AG Opinion No. KP-0413 addresses the limited question presented before the AG's Office. The question was whether paying elected officials a one-time ARPA/SLFRF premium payment in 2021 was permissible given the 10-day newspaper publication notice and meeting requirements of the amounts of any increase of "salary, expenses and allowance" to elected officials under Local Government Code §152.013(b).
The AG was not asked and did not attempt to answer whether premium pay to elected officials comports with all state law, including Art. III, §53 of the Texas Constitution discussed above. Nor was the AG asked whether elected officials come within the scope of "eligible workers" authorized to receive premium pay.
Ultimately, the Texas AG opined "a court could conclude that ARPA premium pay funds are akin to hazard pay and therefore not "salary" for purposes of Section 152.013's advance notice and meeting provisions."
Note: No court has done so. A court could reach a different conclusion on the §152.103(b) salary/notice and meeting requirement question.
Further, the supporting rationale – that ARPA/SLFRF premium pay is akin to hazard pay and therefore separate and distinct from "salary" for purposes of Local Government Code 152.013(b)'s advance notice and meeting provisions – begs another question:
Is hazard pay authorized under Texas law for county elected officials?
Chapter 659 of the Government Code authorizes hazard pay for listed state employees meeting specified criteria. There is no analogous statute authorizing hazard pay for county officials. Even if a court were to agree that giving ARPA/SLFRF premium pay to elected officials is akin to giving hazard pay separate and distinct from "salary" for purposes of Local Government Code §152.013(b)'s advance notice and meeting requirements, there is no express statutory basis for awarding county elected officials hazard pay in the first place.
Finally, the AG's use of the phrase "a court could conclude…" that premium pay given to elected officials in 2021 is permitted under §152.013(b) is a departure from previous practice.
Here are examples of recent AG opinions that contain more affirmative language:
- Atty. Gen. Op. KP-0394 (Dec. 2021) states, "[A] court would likely conclude the City may not assign the treasurer's statutory duties to collect or keep custody of funds to other officers."
- Atty. Gen. Op. KP-0365 (April 2021) uses the phrase "a court would likely conclude" seven times while answering five questions about whether a county complied with Chapter 387 of the Local Government Code in its creation of a county assistance district.
- Atty. Gen. KP-0303 (May 2020) states, "A court would likely conclude that article 59.06 of the Criminal Code of Procedure provides statutory authority for the sheriff to donate a portion of forfeiture funds to [a nonprofit providing mental health services, drug counseling and similar services]."
In conclusion, Texas Attorney General. Op. KP-0413 does not conclude that ARPA/SLFRF premium pay given to elected officials in 2021 comports with state law. As noted in the opinion itself, going forward such questions are moot. Treasury has clarified that elected officials are not eligible for ARPA/SLFRF premium pay. See footnote 4, Tex. Att'y Gen. Op. KP-0413 (citing 87 Fed. Reg. 4338, 4400 (Jan. 27, 2022), now codified at 35 C.F.R. Part 35).