Texas AG says counties can spend COVID relief funds on extra pay for elected officials without public notice

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While Texas counties have to notify taxpayers before increasing elected officials’ salaries, they likely don’t have to have to give such advance notice when using federal COVID-19 relief funds for certain pay increases, Texas Attorney General Ken Paxton said in a nonbinding opinion this week.

Tyler County, located about 120 miles northeast of Houston, received more than $4 million in direct federal funding under the American Rescue Plan Act last year. Now, elected or appointed county officials who have worked during the COVID-19 pandemic could each receive up to $25,000 of that funding.

This week, Paxton’s office issued the nonbinding opinion in response to a February request from the Tyler County auditor.

According to state law, any increases in elected officials’ “salary, expenses, or allowances” must be noted in advance for public review before the annual county budget is approved. Tyler officials wanted to know whether they were allowed to pay their employees and officials from those federal funds even though the payments were not included in the annual budget. The opinion likens those relief funds, known as “premium pay,” to hazard pay and said a court would likely conclude they do not fall under the category of salary that requires advance notice. According to the attorney general office’s opinion, that means the county could allocate the funding to its officials without waiting for the budget review.

According to the U.S. Department of the Treasury, Tyler County has received $4.2 million directly from the federal government in state and local fiscal recovery funds as part of the American Rescue Plan Act. Tyler County Judge Jacques L. Blanchette said approximately $2.2 million of the funding was granted in 2021 while the rest was granted in 2022. Of that $2.2 million, approximately $450,000 went to county employees, including elected officials, who each received $3,500.

Blanchette said the auditor’s letter was sent after the county already paid the extra funds to its employees and officials, both appointed and elected, from the relief funding last September. At the time, the county “believed that it was acceptable from what the auditor had recommended” when the county commissioners court first considered it, Blanchette said. However, Blanchette added that the county’s decision sparked a controversy within Tyler County, which is what led to the auditor’s letter to Paxton’s office.

“It was uncharted waters, and I believe many counties were evaluating to determine if and how much that they may choose to distribute within the county government,” Blanchette said. “A number of the other counties that I spoke with were not of the belief that they could, based upon some language that legal counsel had shared with them.”

Three Tyler County employees returned their checks to the county treasury when they first got them, Blanchette said: treasurer Leann Monk, clerk Donece Gregory and Blanchette himself. He added that a fourth, publicly unnamed county employee returned their $3,500 check in January.

While Paxton’s opinion would indicate that Tyler County is in the clear for its choice to pay its employees, including elected officials, Blanchette expressed doubt that the county would repeat the decision.

“It became so controversial in the county that I strongly sense that there will be no additional distribution to the employees or the officials from that second half of the allocation,” he said.

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