My county does not have a county treasurer. Traditionally, the county auditor and county clerk have signed county payroll checks.
Recently, the county clerk indicated that he could find no authority that required him to perform "audit work", and as a result he would no longer countersign checks unless he received additional compensation.
113.043 of the Govt. Code addresses the issue of countersigning when you have a county auditor and county treasurer, but I can't find anything dealing with countersigning checks when there is no county treasurer.
Is this something that county commissioners can require of the county clerk?
Any insight would be appreciated.
As I understand it, your county treasurer's office was eliminated by constitutional amendment in 1985. Prior to a rewrite of article 16, section 44 in 1999, the provision eliminated the county treasurer and transferred the treasurer's "powers, duties, and functions" to your county auditor. The effect of prior constitutional amendments eliminating specific treasurer's offices was continued within the House Joint Resolution authorizing the 1999 revision of the section. Thus, by force of the constitution, your county auditor has the "powers, duties, and functions" of the county treasurer.
As you note, section 113.043 of the Local Government Code applies in "a county with a county auditor," but it imposes a countersignature obligation only upon a county treasurer. Thus, its scope actually requires the existence of two offices: county auditor and county treasurer. The purpose of the provision, of course, is to ensure review of the propriety of a claim by the auditor before it is actually paid. Here, the auditor is required to perform both duties: auditing and actually signing the check. It would seem to be an absurd construction to require the county auditor to countersign a check that he/she already had signed. In the absence of a contrary statutory provision requiring some other officer to countersign, then, I would have to conclude that the constitutional elimination of a county treasurer in your county takes your county out of the scope of section 113.043. Unless you are aware of another countersignature requirement, the apparent result is that your checks don't have to be countersigned. Of course, the commissioners court and the auditor still must approve the claims that are paid by way of county checks.
I am not sure CC can order the clerk to do it, except as part of preparing the minutes and tend to doubt that option would really consitute part of the minutes. By signing the checks, they are taking on some additional duties and potential legal liabilities for fraud.
I presume your CC approves the bills, drafts and/or ledgers as part of the regular meeting. While the court might not be able to order the clerk to do it, I would think the county judge could countersign with CC approval per a CC minute order as part of the approval process, if they want or think it necessary
I read with interest this colloquy on the reluctant County Clerk. In most counties in Texas the County Clerks want their name on everything. There is authority for the County Clerk's countersignature. By oblique reference both DM-440 and JC-0080 refer to the county clerk countersignature responsibility. Additionally, I have found two references to the County Clerk signing and attesting. See Tex. Loc. Gov't Code sections 113.042(f), 113.066. In that connection the county technically issues a warrant of the County to the county employee. Perhaps this requirement has been amended by some statute but in our county "Old Spanish Customs" die hard.
Ray raises an interesting point, but I was under the impression that those provisions related to the internal workings of the county offices for bill approval that I referenced above as well as the district and county courts payments of costs et al in court business, as distinguished from what I thought was the question as to who, in addition to the auditor, would sign the actual paycheck that is cashed by the bank on the County's bank account,where there is no treasurer and what the bank would recognize as a properly signed check at the cashier's window. Perhaps this is error on my part and I would like to know how the other counties are handling this matter as a matter of practice (if not law).
A similar battle was fought long ago in Delta County, Texas. I was not personally involved, but around 1980 as I recall a visiting judge in District Court was hearing a mandamus petition to force the then County & District Clerk to co-sign checks to pay bills approved by the commissioner's court. The commissioner's court had approved the payment of the bills and approved the minutes but the clerk didn't think the minutes were right as they'd changed what she recorded so she refused to act in accordance with the commissioner's court directions. The power company as I recall had a truck at the courthouse/jail to pull the electric meter as the hearing was held. It resolved peacefully and the clerk signed the checks.
Ancient history, but there might be someone in the clerk's office that was there at the time who would remember and could find the file.
The clerk's term was "turbulent" in a small courthouse.
Only slightly off topic. Our local depository bank has come to the commissioners court with the suggestion that the bank cannot be responsible for joint signatures and want us to adopt a single signature resolution.
His theory is that everything is so electronic that human eyes will not ever see the check so they don't want the responsibility.
My read of 113.043 sounds like the bank is involved in the process and has an active duty to not accept checks without joint signatures.
I am also going to post this. It is slightly off topic since the original post was about "Lone Ranger" auditors.
Any thoughts on this?
CA Hansford Co.
JLH: Many banks use "positive pay" to limit liability. Basically, the county submits a list of issued checks to the depository(electronically). When a check is put into the financial stream for payment from the depository, the depository compares it against the list of authorized checks before they release the funds. It protects both parties.
I'd be leary of any effort to absolve the bank and leave the county on the hook, although I admire the clever way they are attempting to end rund around any pesky constitutional indemnification concerns by asking to remove an internal control that protects taxpayer money.
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