A retired attorney would like to volunteer with the District Attorney's Office. The individual does not want a job so as not to mess with their current retirement benefits. The individual simply wants something to do during the day. There is no expectation of receiving compensation.

The DA's Office could use the help and would like for the volunteer to be sworn in so that the volunteer could prosecute cases such as JP court cases, etc. It is not desired to have to get the position approved by the Commissioners Court so it can't be later said at budget time that the office can't have a new full-time paid position because we have volunteers who can do the work.

The Office currently has an intern program, but these are unpaid interns who are seeking experience and are supervised closely by paid attorneys. The volunteer more than likely could not be classified as an intern.

Other counties have a lawyer on loan program, generally put in place to give young attorneys in the private world some courtroom experience. These persons are paid by their firms but are providing service for the county. They too are supervised and managed by county employees. I would not think that the volunteer scenario would fit a lawyer on loan, when the individual is retired and is not a paid employee of some firm or other employer.

A county government can have volunteers as long as they are not regarded as employees for purposes of the Fair Labor Standards Act as I understand. They receive no compensation and they are not otherwise employed by the same public agency to perform the same type of services as those for which the persons proposes to volunteer.

I am looking for any thoughts or insight on how to let everyone benefit in the above referenced scenario while managing the FLSA restrictions and other liability issues.

Some thoughts:

You don't appear to have any FLSA problem here -- attorney is a volunteer, not paid for any job with the County, correct? The classic FLSA problem happens when an already-employee wants to volunteer in another capacity, such as when they work paid as a jailer but want to volunteer as a constable reserve. But when all they do is volunteer, not an issue.

There is no prohibition to having a volunteer ACDA or volunteer ADA or volunteer ACA. They can be sworn. Better have them comply with all the usual stuff, too: Brady training, etc.

The sole issue is whether the Commissioners Court has to approve the 'volunteer position' (not the person, they don't get to approve or disapprove of a particular Assistant).

Gov't Code 41.102 speaks to this. There is a strong statutory language argument that if the person isn't being 'employed', that is paid, by the county, the commissioners court cannot limit the number of authorized office personnel, except for limiting the number of authorized reserve investigators.

Local Gov't Code 151.001-151.004 is also of interest, and again has the official seeking commissioners court authority to appoint 'employees' and the need to set out the number of 'employees' required. (But 151.001 does not apply to DA or CDA officers in population of > 190K population.)

It does not appear that someone brought on board temporarily to handle a case and sworn as an ADA, for example - an AAG - would be an employee such that there is any 'position' created that must be ok'd by commissioners court. My educated guess is that the same would be true of a volunteer. The approval by commissioners court appears to relate to budgetary issues: how many positions must the county pay for? The number of reserve peace officers -- sheriff deputies, constable deputies, and now DA/CDA reserve investigators -- have always been an area in which the commissioners court had explicit power to limit the number. But as to volunteers otherwise, not so.

I wish there was a nice, clear case or AG opinion on this issue, but I don't know of any. So this is worth exactly two cents....