Baxter, 010821 OHAGO, AGO 2021-001

Case DateJanuary 08, 2021
CourtOhio
The Honorable Kevin J. Baxter
AGO 2021-001
No. 2021-001
Ohio Attorney General Opinion
Ohio Attorney General
January 8, 2021
         The Honorable Kevin J. Baxter          Erie County Prosecuting Attorney          247 Columbus Avenue, Suite 319          Sandusky, Ohio 44870          SYLLABUS:          1. An elected county official may not spend more on employee salaries than the board of county commissioners appropriates for that purpose. The only exception is an excess salary expenditure ordered by a court of common pleas, which must be honored, unless the board of commissioners can prove that the expenditure is unreasonable and unnecessary.          2. A county auditor has a duty to question all doubtful claims. In addition, a county auditor has a duty to deny or withhold payment of invalid warrants when money has not been properly appropriated in the county treasury. This duty applies to warrants involving payroll transmittal amounts for employee compensation presented by a county appointing authority.          3. Should a county auditor process a payroll transmittal amount in excess of the set appropriation amount, the county auditor may be subject to potential liability for issuing a warrant in violation of R.C. 5705.45 and for failing to perform duties under R.C. 319.16.          4. Elected county officials must comply with the FLSA in all cases where it applies, even if its requirements contradict the requirements of state law.          Dear Prosecutor Baxter:          You have requested an opinion regarding the responsibility of a county auditor (“Auditor”) relative to a line item appropriation (“appropriation amount”) for county employee salaries. I have framed your questions in the following manner:
1. May an expenditure for county employee salaries exceed the appropriation amount set by a county board of commissioners (“Commissioners”)?
2. What is the Auditor’s role in determining whether a county appointing authority has exceeded its salaries appropriation amount?
3. What is the Auditor’s responsibility and potential liability under R.C. 5705.45 or other provisions if processing a payroll transmittal would result in an exceeded appropriation amount?
4. Does the federal Fair Labor Standards Act (“FLSA”) require timely “prompt payment” of an employee who worked hours when the elected county official has overspent the appropriation amount?
         I          You first ask if an elected county official may make an expenditure for employee salaries that exceeds the appropriation amount set by the Commissioners. The term “elected county officials” commonly includes the following officers: county commissioners, county prosecuting attorneys, county sheriffs, county coroners, county engineers, county recorders, county auditors, county treasurers, and common pleas court judges. R.C. 305.01; R.C. 309.01; R.C. 311.01; R.C. 313.01; R.C. 315.01; R.C. 317.01; R.C. 319.01; R.C. 321.01; R.C. 2301.01; R.C. 2303.01; 2003 Op. Att'y Gen. No. 2003-027, at 2-222, fn. 1. The answer, at least as a general matter, is “no.”          I begin with a caveat. Various statutory provisions govern the budgeting and expenditures of particular elected county officials. In order to accurately address the appropriation for a particular elected county official, it would be necessary to thoroughly examine all statutes relevant to that official. That task requires a detailed analysis that exceeds the scope of this opinion. See, e.g., R.C. 309.06 (the compensation of certain employees of the county prosecutor is fixed in the aggregate by the judges of the court of common pleas); R.C. 325.071 (furtherance of justice funds); R.C. 5577.13 (duty of boards of county commissioners to appropriate from county road fund money to equip and compensate deputy sheriffs for enforcement of motor vehicle weight and size limits). See generally 2006 Op. Att'y Gen. No. 2006-013, at 2-109 to 2-110 (citing numerous statutes that affect particular appropriations). Thus, this opinion addresses principles applicable to elected county officials generally. It considers only the operations of counties that, like Erie County, have not adopted a charter.          Elected county officials lack authority to pay employee salaries in excess of the amount set by the Commissioners. Every year, the Commissioners must adopt budgets and appropriate funds for various county bodies and officials. 2009 Op. Att’y Gen. No. 2009-044, at 2-315. Elected county officials are required to request funding from the Commissioners. Id. Once requested, the Commissioners determine when to appropriate amounts to the elected county officials for various uses. Id. Commissioners must provide each elected county official their own appropriation, and, within that appropriation, a specific...

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