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July l&2000The Honorable Bob CovingtonGuadalupe County Attorney101 East Court Street, Suite 104Seguin, Texas 78155Opinion No. JC-0255Re: Validity of salary increases for elected countyand precinct officers that exceed the amountsstated in the notice of proposed salary increasesprovidedto thepublicundersection 152.013(b) ofthe Local Government Code (RQ-01X7-JC)Dear Mr. Covington:You ask about the validity of salary increases for elected county and precinct officers thatexceed the amounts stated in the public notice ofproposed salary increases. Section 152.013(b) ofthe Local Government Code requires a commissioners court to publish notice of proposed salaryincreases for elected county and precinct officers, including the amount of the proposed increases,ten days before the meeting at which the increases are set. We conclude that the statute requires acommissioners court to provide notice of the maximum potential salary increases ten days beforethe regular budget hearing. While the test of sufficiency of notice is substantial compliance, whichis usually a fact-based question upon which we would not opine, we note that the Texas SupremeCourt has said in the Open Meetings context that “less than full disclosure is not substantialcompliance.” Cox Enters., Inc. v. Board of Trustees ofAustin Indep. Sch. Dist., 706 S.W.2d 956,960 (Tex. 1986). Similarly, this office in Attorney General Opinion JM-27 wrote that “[a]misleading notice is no notice.” Tex. Att’y Gen. Op. No. JM-27 (1983) at 2. In the case of thisstatute, because as we note further its clear purpose is to apprise the public of the amount by whichelected officials propose to increase their salaries, a notice of a three percent raise does not fullydisclose an intent to raise salaries by six times that amount. The very matter to be disclosed in noticepursuant to section 152.013(b) is the amount of the raise. Accordingly, an understatement of thatamount as substantial as the one here is, in our view, not substantial compliance as a matter of law.You provide the following background information: The Guadalupe County CommissionersCourt published notice of proposed salary increases pursuant to section 152.013(b) of the LocalGovernment Code on August 8, 1999. See Letter from Honorable Bob Covington, GuadalupeCounty Attorney, to Honorable John Cornyn, Texas Attorney General, at 1 (Feb. 11,ZOOO) (on filewith Opinion Committee) [hereinafter “Request Letter”]. The notice stated that the commissionerscourt proposed to increase salaries by approximately three percent. See id. Several days later, asthe result of public workshops, the commissioners court agreed to consider a general eight percentincrease for most elected officers and a 19.6 percent increase for the commissioners. See id. A localnewspaper published two front page articles “detailing the suggested adjustments to the proposed
The Honorable Bob Covington- Page 2(X-0255)increases on August 12th and August 15th.” Id. The commissioners court published an amendedsection 152.013(b) notice on August 22 and held its public hearing on the budget, including theproposed increases, two days later, on August 24. See id. At that meeting, the commissioners courtadopted salary increases ranging from 4.89 percent to 31.01 percent.See id. at 1-2 Thecommissioners’ salaries were raised by 19.59 percent. See id. at 2.You ask three questions about the salary increases: whether notice of the salary increaseswas sufficient to satisfy section 152.013(b) of the Local GovernmentCode; whether acommissioners court may adopt salary increases in excess ofthe proposed increases published in thenotice; and whether the salary increases adopted by the Guadalupe County Commissioners Courton August 24, 1999, are valid. See id. at 2.Chapter 111 ofthe Local Government Code establishes general procedures and requirementsa county must follow in adopting the county budget. In a county with a population of less than125,000, such as Guadalupe County,’ the commissioners court must give public notice of the date,time, and location of the hearing at which it will consider a proposed budget. See TEX. LOC. GOV’TCODE ANN. 5 111.007 (Vernon 1999). In addition, section 111.0075 requires a commissionerscourtto publish notice of a public hearing relating to a budget not earlier that the 30th or later than theSee id. § 111.0075.Section 111.008 requires a10th day before the date of the hearing.commissioners court to take action on the proposed budget at the conclusion of the public hearingand specifically provides that the court “may make any changes in the proposed budget that itconsiders warranted by the law and required by the interest of the taxpayers.” Id. § 111.008(b).Under chapter 152 of the Local Government Code, the codification of former article 3912kof the Revised Civil Statutes, the commissioners court of each county is responsible for setting thesalaries of elected county and precinct officers. See id. 152.013(a) (“Each year the commissionerscourt shall set the salary, expenses, and other allowances of elected county or precinct officers.“).It must do so at the regular hearing on the county budget for the upcoming fiscal year. See id. (“Thecommissioners court shall set the items at a regular meeting of the court during the regular budgethearing and adoption proceedings.“).An elected officer who objects to his or her proposed salarymay request a hearing before the salary grievance committee before the approval of the county’sannual budget, as provided in sections 152.014 through 152.016 of the Local Government Code.See id. 5 152.014-,016; see also Tex. Att’y Gen. Op. No. DM-405 (1997) (grievance committeeprocess limited to period before approval of budget for new fiscal year). After elected officers’salaries have been set and the county budget has been approved, the salaries may not be changed‘Guadalupe County has a population of 64,873 according to the last census. See 1 BU AUOFTHECENSUS,U.S.DEP’T OF COMMERCE,1990 CENSUSOFPOPULATION,General Population Characteristics: Texas 2 (1992) (population:64,873). Therefore, it is not eligible to prepare its budget under subchapter B 01 C of chapter 111 of the Local GovernmentCode. See TEX. Lot. GOV’T CODE ANN. ch. 111, subch. B (Vernon 1999 & Supp. 2000) (budget preparation in countieswith a population of mire than 225,000), subch. C (alternative method of budget preparation in counties with apopulation of more than 125,000).
The Honorable Bob Covington- Page 3(X-0255)until the next budget year. See Tex. Att’y Gen. Op. Nos. JM-839 (1988), JM-326 (1985), H-l 1(1973), Tex. Att’y Gen. LO-95-18.While elected county and precinct officers’ salaries, including any salary increases, areconsidered and adopted with the rest of the county budget, section 152.013(b) of the LocalGovernment Code, the provision at issue, establishes a special notice provision with respect to anyproposed salary increases for elected county and precinct officers:Before the 10th day before the date of the meeting, thecommissionerscourt must publish in a newspaper of generalcirculation in the county a notice of:(1) any salaries, expenses, or allowances that areproposedto be increased; and(2) the amount of the proposed increases.Lot. GOV’T CODE ANN. 5 152.013(b) (Vernon 1999). This special notice is required inaddition to the more general county budget notice requirements set forth in chapter 111. See id. 5 111.007, .0075.TEX.You ask, in essence, whether a commissioners court may adopt salary increases in excess ofthe increases stated in the section 152.013(b) notice. The initial notice giving rise to your requestinformed the public of proposed salary increases of approximatelythree percent but thecommissioners court ultimately adopted significantly higher increases. See Request Letter at 1-2.Indeed, the preponderance of the salary increases ranged from 18 percent to 23 percent, and somewere even higher. See id. at 2.Section 152.013(b)(2) provides a mechanism for the public to scrutinize proposed salaryincreases for elected county and precinct officers, including proposed increases for thecommissioners,who are in the awkward position of setting their own salaries. The statutespecifically provides that the public be given notice of “the amount ofthe proposed increases.” TEX.Lot. GOV’T CODE ANN. 5 152.013(b)(2) (Vernon 1999). Clearly, the purpose of this requirementis to notify the public of the potential amount of salary increases rather than just the mere fact thatthe commissioners court is considering increasing the salaries of elected officials. It would defeatthis purpose to construe section 152.013(b) to permit a commissioners court to adopt any salaryincrease, no matter how significant, provided it first published notice of some minimal proposedsalary increase. See TEX. GOV’T CODE ANN. 5 3 11.023(l), (5) (Vernon 1998) (in construing statute,court may consider object sought to be attained and consequences of a particular construction).Furthermore, we note that while section 111.008 of the Local Government Code provides that acommissioners court may make changes to a proposed budget before taking final action on it at thepublic hearing, see id. 5 111.008(b) (commissioners court “may make any changes in the proposedbudget that it considers warranted by the law and required by the interest of the taxpayers”), no
The HonorableBob Covington- Page 4(X-0255)provision expressly permits a commissioners court to make changes to proposed salary increases.Based on the language and apparent purpose of the statute, we believe that the legislature intendedthe section 152.103(b) notice to apprise the public of the maximum potential salary increases forelected officials, and we construe section 152.013(b) accordingly.While we believe that a court would apply the substantial compliance standard of review todetermine whether a particular section 152.013(b) notice was sufficient to apprise the public of themaximum potential salary increases and whether specific salary increases should be invalidated fornoncompliance with section 152.013(b), we do not believe it can be argued that anotice understatingthe rates of increase in salaries adopted six- or sevenfold substantially complies with the statute asa matter of law. Courts have applied the substantial compliance standard of review to examine thesufficiency of statutorily required public notices in a variety of contexts. See, e.g., Cox Enters., 706S.W.2d at 959 (public notice of subject matter of meeting under Open Meetings Act); Chumney Y.Craig, 805 S.W.2d 864,870 (Tex. App.-Waco 1991, writ denied) (p u bl’tc notice ofhospital districtboard member election); Texas Constr. Group, Inc. v. City ofpasadena, 663 S.W.2d 102, 106 (Tex.App.-Houston1983, writ dism’d) (public notice of proposed housing project); Gravis Y. DuvalCounty, 337 S.W.2d 306, 308 (Tex. Civ. App.-San Antonio 1960) (public notice of county budgethearing); Christy v. Williams, 292 S.W.2d 348, 350 (Tex. Civ. App.Galveston1956, writ dism’dw.0.j.) (public notice of special municipal bond election). The fact that the standard to be appliedis substantial rather than literal compliance, however, will not save a notice which fails to advise thepublic of the very matter it is meant to state.In Cox Enterprises, for instance, while applying the “substantial compliance” standard to thenotice requirements of the Open Meetings Act, the Texas Supreme Court found that the notice inquestion, which did not apprise the citizenry that the “personnel” matter to be discussed was theappointment of a new school superintendent, did not substantially comply with those requirements.It noted, “less than full disclosure is not substantial compliance.” COXEnters., 706 S.W.2d at 960.Similarly here, notice that one intends to pay oneself an additional 1,129 is not full disclosure thatone will pay oneself an additional 7,371.“Substantial compliance” means one has performed the “essential requirements” of a statute.J.D. Evans Constr. Co., Inc. Y. Travis Cent. Appraisal Dist., 4 S.W.3d 447,451 (Tex. App.-Austin1999). Here what is essential is apprising the citizenry, not simply that one contemplates raisingthese salaries, but by what amounf one contemplates so doing. That was not done in this case.In support of your contention that the 1999 salary increases adopted in your county are valid,you cite Neptune v. Renfro, 586 S.W.2d 596 (Tex. Civ. App.-Austin 1979, no writ), a case involvingsalary increases adopted by the Travis County Commissioners Court in mid-1978 after countyofficers submitted grievances to a county salary grievance committee pursuant to section 2(d) offormer article 3912k. Acting under the mistaken belief that the statute required it to finally act onsalary increases recommended by the grievance committee at the next commissioners court meetingafter the court received the recommendation and that the statutory scheme gave it no time to post anotice of the proposed increases ten days prior to the meeting, the commissioners court adopted the
The HonorableBob Covington- Page 5(X-0255)salary increases recommendedby the grievance committee without posting any notice of theproposed salary increases.The court upheld the validity of the salary increases, citing thecommissioners court’s mistaken but good faith interpretation of the statute and the fact that theappellant made no showing that the mid-year salary increases caused the budget to exceed expectedrevenues. See Neptune, 586 S.W.2d at 598-99; see also id. at 599 (noting in summation “the absenceof some showing that such action was arbitrarily taken over timely objection, or was harmful toappellant or other taxpayers, or would have resulted in a budget exceeding expected revenues”).We believe that Neptune is easily distinguishable from the case at hand. The commissionerscourt in Neptune believed, mistakenly but in good faith, that it was impossible for it simultaneouslyto fulfill two statutory requirements-therequirement of decision at the next court session, and therequirement of notice. It was that good faith belief which prevented the court from giving timelynotice. From the information we have been provided, no such impediment is to be found here.Indeed, the workshops as a result ofwhich the commissioners court decided the amount ofthe salaryincreases were held more than ten days before the public hearing. See Request Letter at 1. Nothingin this state of affairs indicates that it would have been impossible in a timely fashion to giveaccurate notice of the proposed increases.Nor are we persuaded that Gravis v. Duval County, 337 S.W.2d 306, 308 (Tex. Civ.App.-San Antonio 1960), which finds substantial compliance in another budget notice case, isapposite here. In that case, the commissioners court gave notice of a proposed budget. However,the notice referred to the budget as that for 1959 rather than 1960. The court noted, inter alia, thatthe budget meeting was well-attended and that citizens were able to address the budget questionsfully. However the basis for the finding of substantial compliance, so far as can be determined, isthat the error complained ofwas a harmless, good-faith mistake. “The notice given was a substantialcompliance with the provisions of Art. 689a-11, supra, even though such notice described the budgetas being for the year 1959, rather than 1960. This was shown to be a typographical error and no oneseem to have been deceived thereby.” Duval County, 337 S.W.2d at 308 (emphasis added). It isnot contended here that the rates of increase published in the August 8, 1999 notice were printed inerror.In sum, we conclude that section 152.013(b) requires a commissionerscourt to providepublic notice ofthe maximum potential salary increases for elected county and precinct officers tendays before the regular budget hearing. While a court would apply the substantial compliancestandard of review to assess the sufficiency of a particular notice under section 152.013(b) and todetermine whether particular salary increases are invalid due to insufficient notice, a noticematerially misstating the amount of the proposed increases is as a matter of law not in substantialcompliance because it provides “less than full disclosure.”Cox Enters., 706 S.W.2d at 960.Accordingly, on the basis of the information we have been provided, we believe that a court ofcompetent jurisdiction would likely hold the proposed salary increases at issue here invalid.
The Honorable Bob Covington- Page 6(JC-0255)SUMMARYSection 152.013(b) of the Local Government Code requiresa commissioners court to provide public notice of the maximumpotential salary increases for elected county and precinct officers tendays before the regular budget hearing. While a court would applythe substantial compliance standard of review to determine whethera specific section 152.013 notice was sufficient to apprise the publicof the maximum potential salary increases and whether particularsalary increases should be invalidated for noncompliance with section152.013(b), a notice materially misstating the amount of suchproposed increases is not, as a matter of law, in substantialcompliance with the statute.Attorney General of TexasANDY TAYLORFirst Assistant Attorney GeneralCLARK KENT ERVINDeputy Attorney General - General CounselELIZABETH ROBINSONChair, Opinion CommitteeJames E. TourtelottAssistant Attorney General - Opinion Committee
Cox Enters., Inc. v. Board of Trustees ofAustin Indep. Sch. Dist., 706 S.W.2d 956, 960 (Tex. 1986). Similarly, this office in Attorney General Opinion JM-27 wrote that "[a] . In Cox Enterprises, for instance, while applying the "substantial compliance" standard to the notice requirements of the Open Meetings Act, the Texas Supreme Court .
