This has come up recently, and I'm researching it, but there is a time crunch and I hope someone has dealt with this before.

Our Commissioners Court is seriously considering the following scheme: Hey employees, since we can't give you a bonus at the end of each year, here is what we are going to do FOR you. We will not pay your longevity pay each pay period as we have in the past. We will hold that back, then, in December, we will give you your longevity pay, (without the accrued interest, which the County will keep, thank you very much), so that you get a good lump sum to help with your Christmas shopping.

I can't believe this is permissible. If anyone has seen this zany scheme before and squelched it, or if I'm totally crazy and they can do this, please respond. Meanwhile, I'll post whatever I find on the subject too.

I don't think they can do that. If they can, why not just hold the longevity pay until you resign / retire, then pay it? Maybe you should propose that they pay you the longevity pay in ADVANCE each year. Don't they know better than to try to withhold $$ from lawyers?!

The statute which created funding for assistant longevity pay speaks of the Comptroller disbursing a certain amount to each county to reimburse for the county's payment in each paycheck of the longevity amount. That seems to me a clear indication of legislative intent that the supplement be paid along with all other periodic compensation (e.g., in each paycheck). Thus, the legislation seems to indicate that it must be paid, if at all, as a coordinated salary supplement in each periodic compensation payment. In view of that legislative intent, there's probably an argument that their intended approach would be ultra vires.

I'm not clear as to whether you mean the statutory longevity pay for prosecutors or longevity pay for county employees in general. I took the question to mean the latter, but both responses seem to talk in regards to prosecutor longevity pay.

As for assistant felony prosecutor longevity pay, they cannot do it.

As Scott pointed out, Gov't Code � 41.255 (e) says: "On the receipt of funds from the comptroller as provided by Subsection (d), the county shall pay longevity supplements to eligible assistant prosecutors in the next regularly scheduled salary payment or in a separate payment."

I don't know off the top of my head what statute sets out general longevity pay for county employees, so I don't know if the same holds true there.

From AG Opinion No. GA-0322:

Moreover, here we are addressing a literal salary rather than an employee benefit as that term is traditionally used. Section 152.011 authorizes the commissioners court merely to "set" the compensation of county employees. See Tex. Loc. Gov't Code Ann. � 152.011 (Vernon 1999). The commissioners court "sets" the salary when it adopts the county budget. Once the commissioners court provides the county officer with the resource of the salary, it may not interfere with his use of that resource for that budget year. (6) See Tex. Att'y Gen. Op. No. JC-0131 (1999) at 3 ("once the salaries of county officers and employees are set, the salaries may not be reduced, outside of the regular budget adoption and amendment process"); see also Pritchard & Abbott, 350 S.W.2d at 335. Here, to preclude the Sheriff from paying the suspended employee during the fiscal year is to effectively fire the deputy. The right to discharge or suspend a county employee is not "implicit in the authority of the commissioners court to create the positions . . . and to provide for their salaries and expenses." Ross, 809 S.W.2d at 756. Accordingly, it is our opinion that as a county officer the Sheriff has the discretion to suspend his deputies and employees as well as the discretion to continue to compensate them during their suspension.

Though broad, this discretion is not unfettered. A sheriff, as every county officer, is bound by the constitution. Article III, section 52(a) provides, in relevant part, that the "Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the State to . . . grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever." Tex. Const. art. III, � 52(a). Whether a paid suspension "serves a public purpose must be determined in the first instance by the public official, whose decision is subject to judicial review." Tex. Att'y Gen. Op. No. GA-0303 (2005) at 2; see also Tex. Att'y Gen. Op. No. JC-0119 (1999) at 4. Thus, in order to comport with article III, section 52(a), a sheriff must determine, subject to judicial review, whether a paid suspension primarily serves a legitimate public purpose (7) and must place sufficient controls on the compensation to ensure that the public purpose is carried out. (8) See Tex. Att'y Gen. Op. No. GA-0078 (2003) at 4 (expenditure of public funds is proper under section 52(a) if expenditure serves a public purpose and sufficient controls are in place to ensure the public purpose is carried out); see also Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377, 383 (Tex. 2002).

Article III, section 53 (hereinafter "section 53") prohibits the granting of extra compensation after service has been rendered. See Tex. Const. art. III, � 53. Its purpose is to protect local governments by preventing "counties or municipalities from freely giving away the public moneys for services previously rendered or for which no valid legal authorization existed for which the public would receive no return." Tex. Att'y Gen. Op. No. JC-0376 (2001) at 2. In light of its purpose, "[t]he constitutional prohibition forbids paying extra compensation for past performance or adding additional consideration to the contract already entered into." City of Orange v. Chance, 325 S.W.2d 838, 840 (Tex. Civ. App.-Beaumont 1959, no writ). "Extra compensation" has been construed to mean any sum in addition to the contract price or salary. See Dallas County v. Lively, 167 S.W. 219, 220 (Tex. 1914). In Dallas County v. Lively, the Texas Supreme Court said "[e]xtra compensation is such not merely for being greater or less than the contract, but properly because it is outside the contract." Lively, 167 S.W. at 220 (emphasis added). Section 53 does not prohibit payment to employees pursuant to prospective terms of employment. See Chance, 325 S.W.2d at 840 (deciding that Civil Service Act provided for payment of accumulated sick leave and "became and formed a part of their contracts of employment" and was not extra compensation); see also Ward v. City of San Antonio, 560 S.W.2d 163, 166 (Tex. Civ. App.-San Antonio 1977, writ ref'd n.r.e.) ("The contract between the City of San Antonio and the firemen prior to September 1, 1975 was for the payment of 90 days of accumulated sick leave upon the separation from the classified service and the payment of more than 90 days accumulated sick leave accumulated prior to September 1, 1975 would be extra compensation within the meaning and provision of [section 53] . . . ."). Pursuant to the concept of extra compensation being that which is outside of the contract, this office has consistently opined that section 53 does not prohibit the payment of compensation or benefits to employees under prospective terms of employment. See Tex. Att'y Gen. Op. No. JC-0115 (1999) at 2 (award of back pay does not violate section 53 when there has been a policy permitting the practice in place prior to the award of back pay); see also Tex. Att'y Gen. Op. Nos. DM-129 (1992) at 2, 4 (sick leave pool as term of employment with the city did not violate constitution), JM-1253 (1990) at 2-3 ("A bonus may be paid to a county employee only if the commissioners court has approved the bonus plan as part of compensation before the services are rendered."), JM-1160 (1990) at 1-2 (prospective grant of additional sick leave does not violate article III, section 53), H-402 (1974) at 2 (concluding that a commissioners court was not authorized to grant back pay to a suspended employee who had been exonerated unless there had existed, prior to the award of back pay, a policy permitting the practice).

Boy Hideee! This post has garnered more responses than I anticipated. The question applies to ALL county employees, but you all have raised good points. The longevity pay for ADA's has its own statute, that for Sheriff's employees has its own, etc., and they all speak in terms of amounts paid per month.

I have not come accross a general county employee longevity pay statute, and tend to think that our commissioners have adopted their longevity pay as a substitute for cost of living increases and it as policy, not a compliance with any statute. It is the policy they wish to modify.

SO in so doing they may well face being in non compliance with longevity pay for those persons who are paid at least in part by the county, but are not necessarily "county employees" since they are employed say, by an elected official who serves a district as opposed to a county, and who receive State supplements or State mandated supplements to their salaries.

Everything I've read, both from you all and on my own, skirts the issue. We seem to be close, but still haven't found the bull's eye.

I've looked at too many AG opinions and statutory annotations that don't really address this situation, as have many of you. Can't help but think we are approaching from the wrong direction, but I'll be darned if I have found the right trail head!

What about the angle that since the county has agreed to pay Joe Blow $10 per month, the act of paying only $9 per month and using Mr. Blow's $1 to earn interest for the county, not for the Mr. Blow, deprives Mr. Blow of the income he otherwise could have chosen to make from that $1, and further constitutes a taking without just compensation?

Also, our county treats ALL employees and officials as though they were paid by the hour. The "hourly rate" for all employees would have to be modified initially to reduce it to reflect non payment of the $1, and increased at the end of the year when the interest free savings accounts are paid out as employee compensation? Does this amount to a reduction of pay during a budget year which would be a no no?

I think your latter argument is closer to the mark than the former. Employment is a contractual arrangement. The Texas Supreme Court in the IT-Davy case made fairly clear that a governmental entity exercising what it believes to be its rights under a contract (even if mistaken) acts under the contract rather than article 1 section 17 and does not demonstrate the requisite intent to "take" for public use. While, as you note, I'm unaware of any directly "on-point" AG opinions, it appears that the real effect of the proposed policy is to reduce compensation after budget. As is pointed out above, that's a no-no in the absence of the type of emergency that justifies a budget amendment.

Al,

If they are talking about withholding earned money over the next several months and paying it later, heck that's a Big Problem. Prior posts set out the obvious legal issues. Specific statutes cover some of this, but the general payday law would come into play, too, I would think.

If they are considering paying a lump sum at the end of the year as a new, additional earned compensation amount and not a deferred amount they held back from previously earned wages, I think there are lawful ways to do that.

Everything I ever hear about your town sure is interesting..................

I think that if the Commissioners, in creating the longevity pay benefit, draft their policy such that it calls for payment at the end of the calendar or employment year, that it can be done. With the exceptions already pointed out, longevity pay is not necessarily part of salary.

For instance, Nolan County offers longevity pay (what's cost of living increase? I've never seen one!) for persons who have been employed more than 5 years on the formula of $5/month after five years. Now, if they said $ 60 per year past five years to be paid on the anniversary of hiring, or on the first pay day in December, I think that they could do that. The argument on the interest would be that it does not belong to the employee until the principle does, and it does not change hands until the designated day.

I may be overly simplistic, but think that they can do it if they word it correctly.

As usual, Ann and Lisa have straightened out the mess that customarily is left in the wake of my opinionated drivel. If the restructured payment of longevity is couched in terms of an "end of year longevity incentive compensation arrangement," there probably would be no art. 3, section 53 issue. But, to avoid the bugaboos that could crop up with the constitutional "extra compensation" provision, and to avoid the appearance of reducing compensation midway through the budget and usurping elected officals' authority to allocate the resources placed at their disposal, the prudent time to do that would be at budget.

The current plan has nothing to do with additional compensation, and they want to institute it the sooner the better (for them). The plan would actually result in smaller pay checks for all concerned, (except electeds, who are not included in it), until the end of the year. Our current plan is also a $60 per year - after five situation, up to the twentieth year. For some this would mean a substantial cash flow reduction for the biggest part of the year.

I agree that Ann and Lisa have presented a reasoned and logical approach to the court's accomplishing its goal, (darn you), but I also think this thing, if perpetrated at all, should be limited to new hires so the people having shown the greatest loyalty to the county won't have to bear the greatest cash flow crunch.

The thing that sticks in my craw in this whole deal is the issue of fundamental fairness. The federal government gets away with interest free loans, (from those who actually get income tax refunds), and it seems to me that is exactly what the county is doing in this situation.

So, I guess here's my response to the court in a nutshell - 1)It's probably legal to do this if done properly, 2) don't do this silly thing until budget, & 3) for goodness sake let attrition handle the people already employed.

how this comes out. I can normally do pretty well with my commissioners on your point # 1, the law, I can often convince them that changes to things monetary should wait until October 1, point # 2. When I advise on policy, however (point # 3), I'm often told to mind my own business.....

how does one request to be signed up with the comptroller's office for the county to receive funds? My county said I had to get them the forms before they would figure out what it was...I couldn't find any on the comptroller website.

The older posts say the comptrollers sent forms out, was that initially or do they do so every year?

Suzanne, I emailed you with details on who to contact at the Comptroller's Office.

I need to fix my posted e-mail. Will you try it again without the dot--just suzannejost at hotmail? Thanks very much!

Just did.