The Honorable Kevin J. Baxter
AGO 2017-13
No. 2017-013
Ohio Attorney General Opinions
Ohio Attorney General
May 16, 2017
The
Honorable Kevin J. Baxter
Erie
County Prosecuting Attorney
247
Columbus Avenue, Suite 319
Sandusky,
Ohio 44870-2636
SYLLABUS:
1. A
county auditor is required to issue a warrant on the county
treasurer to pay the compensation of county employees in an
amount that is set forth in a proper order or voucher and,
with respect to employees in the classified service of the
county, a certified estimate, payroll, or account from the
pertinent appointing authorities. (1969 Op. Att’y Gen.
No. 69-153, overruled, in part, due to statutory amendment.)
2. A
county auditor may not implement a change in the number of
days in which a county employee’s compensation is paid
following the end of a pay period by paying certain county
employees compensation for only one week of a biweekly pay
period, unless the county appointing authority presents to a
county auditor a voucher or order setting forth that amount.
3. A
county appointing authority may present a voucher or order
setting forth compensation for only one week of a biweekly
pay period, so long as such a change does not conflict with a
provision of an applicable collective bargaining agreement.
4. A
county appointing authority may not present a voucher or
order setting forth compensation for only one week of a
biweekly pay period, when doing so causes a county employee
to be paid his annual compensation in fewer pay periods than
is specified in an applicable statute, or to receive in the
same number of pay periods less than his full annual
compensation in one year.
5. A
county appointing authority may not present a voucher or
order setting forth compensation for only one week of a
biweekly pay period, unless the reduction in pay is supported
by one of the reasons set forth in R.C. 124.34.
6. A
county appointing authority may not present a voucher or
order setting forth compensation for only one week of a
biweekly pay period, when doing so violates the Fair Labor
Standards Act, 29 U.S.C.A. §§ 201-219 (West Group
1998).
Dear
Prosecutor Baxter:
You
have requested an opinion about a county auditor’s
authority to change the number of days in which a county
employee’s compensation is paid following the end of a
pay period when changing the number of days will cause the
employee to receive compensation for one less week in the
calendar year in which the change is implemented. You have
explained that currently all Erie County employees are paid
biweekly on the same day. Some of those county employees,
however, are paid thirteen days after the last day of a pay
period, while others are paid six days after the last day of
a pay period. For example, on the March 24, 2017 pay date,
the county employees who are paid thirteen days after the
last day of a pay period receive compensation for work
performed during the weeks of February 26, 2017 through March
11, 2017. On the same pay date, the county employees who are
paid six days after the last day of a pay period receive
compensation for work performed during the weeks of March 5,
2017 through March 18, 2017.
Both
categories of county employees are paid biweekly for a pay
period of two weeks. The difference between the categories is
that the county employees who are paid six days after the
last day of a pay period receive compensation for a two-week
pay period that ends six days immediately preceding the pay
date. The county employees who are paid thirteen days after
the last day of a pay period receive compensation for a
two-week pay period that ends thirteen days immediately
preceding the pay date. For ease of discussion, we refer to
the employees who are paid six days after the last day of a
pay period as employees who receive compensation six days in
arrears.
[1] Similarly, we refer to the county
employees who are paid thirteen days after the last day of a
pay period as employees who receive compensation thirteen
days in arrears.
In
order to increase efficiency and accuracy in processing the
county’s payroll, the county auditor would like to
implement a plan for the second half of calendar year 2017
that will transition the county employees who are paid six
days in arrears to a schedule that is thirteen days in
arrears. To accomplish that goal, the county auditor proposes
that for the June 30, 2017, pay date, the county employees
who are paid six days in arrears will receive compensation
for work performed during the week of June 11 through June
17, 2017. Compensation for the June 18 through June 24, 2017
work week, which would have been paid on June 30, 2017, would
instead be paid on July 14, 2017. On July 14, 2017, all
county employees will receive compensation for the same
two-week pay period that ends on July 1, 2017. From that
point forward, all county employees will be paid thirteen
days in arrears and will receive all of the compensation
earned in 2017 by January 12, 2018. However, implementation
of this transition plan means that the county employees who
were paid six days in arrears prior to the change will, in
calendar year 2017, receive compensation for one week less
than they would have received had the schedule not been
changed. The affected county employees will receive, in one
biweekly paycheck of 2017, compensation for only one week of
that biweekly pay period. Payment of the compensation for the
second week of that pay period will be delayed until the next
biweekly pay date.
[2] In essence, your question asks
whether payment of a county employee’s compensation for
one week of a biweekly pay period may be delayed until the
next biweekly pay date.
[3]
I.
County Auditor’s Warrant for Payment of
Compensation
To
answer your question, it is helpful to first explain a county
auditor’s authority with respect to the payment of
compensation to county employees. A county auditor, as a
creature of statute, has only those powers conferred
expressly by statute, or necessarily implied therein. 2012
Op. Att’y Gen. No. 2012-018, at 2-154. R.C. 319.16 sets
forth a county auditor’s duty to issue warrants to pay
county obligations, including compensation to county
employees, and provides, in pertinent part, as follows:
The county auditor shall issue warrants, including
electronic warrants authorizing direct deposit for payment of
county obligations in accordance with [R.C. 9.37(F)], on the
county treasurer for all moneys payable from the county
treasury, upon presentation of the proper order or
voucher and evidentiary matter for the moneys, and keep
a record of all such warrants showing the number, date of
issue, amount for which drawn, in whose favor, for what
purpose, and on what fund. The auditor shall not issue a
warrant for the payment of any claim against the county,
unless it is allowed by the board of county commissioners,
except where the amount due is fixed by law or is allowed by
an officer or tribunal, including a county board of mental
health or county board of developmental disabilities, so
authorized by law. (Emphasis added.)
See also R.C. 321.15 (“[n]o money shall be
paid from the county treasury, or transferred to any person
for disbursement, except on the warrant of the county
auditor”); R.C. 5705.46 (“[e]ach political
subdivision may make expenditures for the payment of current
payrolls upon the authority of a proper appropriation for
such purpose”). An additional requirement is imposed
upon the county auditor with respect to warrants issued for
the payment of compensation for officers, clerks, and
employees in the classified service of the county. R.C. 9.41
provides, in pertinent part:
[A]ny fiscal officer of any county … shall not draw,
sign, issue, or authorize the drawing, signing, or issuing of
any warrant on … the treasurer … of any county
… to pay any salary or other compensation to any
officer, clerk, employee, or other person in the classified
service unless an estimate, payroll, or account for such
salary or compensation containing the name of each person to
be paid, bears … in the case of the service of the
county, the certificate of the appointing authority, that the
persons named in the estimate, payroll, or account have been
appointed, promoted, reduced, suspended, or laid off, or are
being employed in pursuance of [R.C. Chapter 124] and the
rules adopted thereunder.
A
county auditor’s duties are generally ministerial. 2009
Op. Att’y Gen. No. 2009-033, at 2-218. While a county
auditor may require evidentiary matter to demonstrate that a
claim is proper in purpose and amount, 2009 Op. Att’y...
