Maverick County Commissioners Court approves to Stop Salary Payment of County Auditor
By: Jose G. Landa, Copyright 2014, Eagle Pass Business Journal, Inc.
Maverick County Commissioners Court approved unanimously to stop the salary payment of County Auditor Fidencio Ortiz at their special meeting held on Monday, November 17, 2014, at Commissioners Courtroom at the Maverick County Courthouse in Eagle Pass, Texas, citing the lack of an of Order for Payment signed by both State District Judges Amado J. Abascal, III, and Cynthia Muniz as required by the Texas Local Government Code, Section 84.003, in their latest attempt to have County Auditor Ortiz resign and/or be terminated as County Auditor.
County Commissioner of Precinct 4 Roberto Ruiz requested that Agenda Item No. 17 be placed on the November 17th special meeting after a previous November 10th meeting tabled a similar agenda item to withhold payment of the County Auditor, this time calling for “discussion and possible action on the issue of an Order, or lack thereof payment to County Auditor.”
Maverick County Commissioners Court earlier this year on May 5, 2014, approved unanimously a resolution of no confidence against County Auditor Ortiz and requesting that he be changed and replaced presented by Commissioner Ruiz.
At a November 10th meeting, Commissioners Court went into Executive Session to consult with General Counsel Poncho Nevarez on whether they could withhold payment of County Auditor Ortiz because his two year appointment period had expired and state District Judges Abascal and Muniz had split on the appointment of Ortiz to a new term as County Auditor at a special meeting held on October 10th, but tabled the agenda item pursuant to General Counsel Nevarez’s legal advice.
The November 17th Commissioners Court meeting agenda was drafted following the Texas Local Government Code Section 84.003 language concerning the appointment of a County Auditor by the County’s District Judges in four separate agenda items.
According to Section 84.003 of the Texas Local Government Code, the procedure for appointment of a County Auditor states in pertinent part: “(a) The district judges shall appoint the County Auditor at a special meeting held for that purpose. If a majority of district judges cannot agree on the selection of a person as County Auditor, one of the judges shall certify that fact to the governor, who shall appoint another district judge to act and vote with the district judges to select the County Auditor. (b) The clerk of the district court shall record the judges’ action in the minutes of the court and certify it to the commissioners court. The commissioners court shall record in its minutes the judges’ action and an order directing payment of the auditor’s salary.”
The first was Agenda Item No. 14 regarding “discussion and possible action requesting the Clerk of the District Court to certify the minutes of Public Meeting dated October 10, 2014 regarding the appointment of a County Auditor.”
During discussion of Agenda Item No. 14, Commissioner Roberto Ruiz noted that there had been an effort by Commissioners Court to obtain the minutes of the October 10th meeting between District Judges Abascal and Muniz from the Clerk of the District Court but that Commissioners Court had just been provided a transcript of the proceedings of this October 10th meeting, not the minutes requested.
County Judge David R. Saucedo answered that he did not believe he had the minutes to that October 10th meeting but that he had been provided with a transcript of the meeting. “If you all want, we can use the transcript to be utilized as the minutes,” said Judge Saucedo to Commissioners Court.
Judge Saucedo asked General Counsel Poncho Nevarez for his opinion on what could be done in this situation. “They are a literal translation of what occurred, better than minutes because it’s a word for word transcription,” replied Nevarez.
Nevarez advised Commissioners Court that it would be best to table Agenda Item No. 14 because there was no one from the District Clerk’s Office present at the meeting to provide them the minutes that had been requested.
Nevarez asked Commissioners Court if the District Clerk had provided the transcript. “No we just have what the Judges tried to provide us on what they saw,” said Judge Saucedo.
Commissioner Ruiz noted that Agenda Item No. 14 called for the approval of the minutes and that no minutes had been provided.
Nevarez reiterated that there was no action that could be taken on the agenda item due to that fact.
County Judge Saucedo then called for no action on the Agenda Item No. 14.
Judge Saucedo proceeded to Agenda Item No.15 calling for the “discussion and possible action in Order to record in the Commissioner’s Court minutes, the minutes of the Judge’s actions from the Public Meeting dated October 10, 2014.”
Commissioner Ruiz stated that since there had been no action on the previous agenda item No. 14, that this Agenda Item No. 15 also calls for no action.
County Judge Saucedo concurred with Ruiz’s statement and proceeded to ask to table Agenda Item No.15 as well.
During discussion, however, General Counsel Nevarez advised Commissioners Court that if they so desired they could record the transcript into the minutes as called for by Agenda Item No. 15.
Judge Saucedo then asked to revisit and open up agenda item No.15 to be able to proceed and record the transcript provided into the minutes of the November 17,2014 Commissioners Court meeting.
“ What I do have available is a transcript that was sent to me stating what was spoken at that meeting,” said Judge Saucedo.
Ruiz asked Nevarez for his legal recommendation. “What is better? A transcript of every word that was spoken or somebody scribbling down not word for word what was spoken but idea for idea,” replied Nevarez. Ruiz answered, “It’s the same intent.”
Nevarez stated what they had was a transcript and that it was up to the commissioners court if they wanted to add the transcript of the October 10th meeting into the minutes of the commissioners court meeting.
“It is not on the Commissioners Court and it is not our fault that we haven’t been given the minutes. They have been requested and we have gone to the District Judges trying to get some clarification on what transpired that day exactly. What are we supposed to do? How are we supposed to do this? At this juncture we have gone to the District Clerk and asked if we are going to do this give us something that states and gives the order correctly of what we are supposed to do. At this juncture we don’t have the District Court certifying minutes. At this juncture we don’t have minutes given to Commissioners Court by the District Clerk to certify. We have two problems here. I’m saying for posterity purposes we can accept this right now. They won’t be the official minutes,” said Judge Saucedo.
Judge Saucedo read Section 84.003 of the Local Government Code: “The Clerk of the District Court shall record the judges’ action in the minutes of the court and certify it to Commissioners Court.” Do we have that? asked Judge Saucedo.
Commissioners Court concurred that they did not have that action in place.
“The Commissioners court shall record in its minutes the Judges’ action and order directing the payment of the Auditors salary,” read Judge Saucedo the pertinent section of the Local Government Code.
“Why are we doing this now? The term of the County Auditor ended in September 24, 2014 and here we are in November 2014 and we don’t have an Auditor that has been re-appointed,” said Judge Saucedo.
Commissioners Court unanimously approved to accept the transcript of action of the District Judges’ October 10th meeting be recorded in the November 17th Commissioners Court meeting minutes.
The third Agenda Item No.16 called for “discussion and possible action requesting an order directing the payment of the auditor’s salary from the District Judges.”
During discussion, Commissione Ruiz asked if there is an order directing the payment of the Auditor’s salary from the District Judges?
Maverick County Treasurer Rito J. Valdez, III, replied to Commissioner Ruiz that he does not have such an order from the District Judges directing payment of County Auditor Ortiz’s salary.
Judge Saucedo stated that he had something but that it would require some explanation as to what he had received that very same day at 5:10 pm. from District Judge Abascal.
“I’m going to go by the statute. I have an order sent to me by District Judge, no disrespect to Judge Amado Abascal , and I will read it to you. It says on the 10th day of October A.D. 2014 the Judges of the 365th and 293rd Judicial District of Texas and District Courts of Maverick County Texas met pursuant to Chapter 84.003 of the Texas Local Government Code for the purpose to appoint an Auditor of such county as required by law. Now, therefore, I the undersigning Judge of the 365th District Court of Maverick County Texas do hereby certify that at that special meeting held for such purpose that no County Auditor appointee was designated by the Honorable Cynthia Muniz, Judge of the 293rd Judicial District Court, and that Fidencio Ortiz was designated as the appointee of Maverick County Auditor by the Honorable Amado Abascal, Judge of the 365th Judicial District Court. I further certify that a majority of the District Judges of Maverick County, Texas at said special meeting did not agree on a selection of a person as County Auditor for Maverick County, Texas, and I further certify that on August 14,2014 at a public hearing in which parties and interested citizens had an opportunity to be heard followed by a vote by majority of the District Judges attending the public hearing the salary for Fidencio Ortiz County Auditor for Maverick County was set effective the first day of October at $70,000 annually plus medical hospitalization plus fringe benefits and that it was ordered that the Commissioners Court of said county should record said action in the minutes together with an order directing the payment of said Auditors salary and that the order of the District Judges of August 14,2014 is still enforced and in effect. I further order that the District Clerk of Maverick County, Texas shall record this action in the minutes of such courts,” read Judge Saucedo.
“You have an order from one District Judge. You don’t have an order from both District Judges’,” said Judge Saucedo.
Saucedo then stated that he also had an order setting the salary for the Auditor in 2013 and that it was signed by Abascal but that he also had the order of the appointment of Ortiz as Auditor in 2012 and that both Judges had signed off on that order. “The term of the Auditor is 2 years and the 2 years have passed,” said Judge Saucedo.
“What we are doing here today and what we have requested from the Judges and the District Clerk is an order appointing a County Auditor and setting a salary and asking Commissioners Court to pay that salary. I think it be important to know that under [section] B of statute 84.003 states that the clerk of the District Court shall record the Judges’ action in the minutes of the court and certify it to Commissioners Court and I will repeat it to the public and to the County Clerk , Judges’ S apostrophe , plural,” noted Judge Saucedo.
Judge Saucedo noted that such order needed to come from both District Judges Abascal and Muniz, not just one.
“So, I don’t have an order. I don’t try to defy a District Judge, but I don’t have an order from both District Judges. I have an order from one District Judge. The statute clearly states that it needs to come from both District Judges,” said Judge Saucedo.
“So, what do we do as Commissioners Court? We don’t have an order directing payment of the Auditors salary from both District Judges,” added Judge Saucedo.
General Counsel Nevarez stated “The question you have to ask yourselves is if the order satisfies the statute?”
Commissioners Court concurred that Agenda Item No.16 could not have any action taken due to the lack of an order from both District Judges satisfying the statute.
The fourth Agenda Item No. 17 called for “discussion and possible action on the issue of an order, or lack thereof payment to County Auditor.”
During discussion, Judge Saucedo asked General Counsel Nevarez where does the previous agenda items discussed leave Commissioners Court in regards to agenda item No.17.?
“You already answered the question before. You didn’t receive an order. What does the statute ask you to do?,” replied Nevarez.
Commissioner Ruiz stated that under agenda item No.17 it was now up to commissioners court to decide whether the county pays the County Auditor.
“My contention is that since we do not have an order properly signed by both District Judges, then there is no payment because we don’t have an actual order from both 365th and 293rd Judicial District Judges,” said Commissioner Ruiz.
“At this juncture, I guess the Auditor shouldn’t be getting paid,” said Judge Saucedo.
“If you read the statute and the way it reads you are at the point as Mr. Ruiz said it’s up to you as to what you are going to do in absence of that order. If the statue calls for an order from both judges and it does then you need to decide as an elected body what to do in the absence of that order,” said General Counsel Nevarez.
Commissioner Ruiz made a motion “on item 17, I move that we stop payment for Maverick County Auditor Fidencio Ortiz because of the fact that according to the Local Government Code we do not have an order for payment from both District Judges 365th and 293rd Judicial District Judges’ . We have one and consequently it does not apply to what the law is calling for,” said Ruiz.
Commissioner Jose Luis Rosales seconded the motion made by Ruiz.
During discussion, Judge Saucedo asked if County Auditor Ortiz has been paid after his term of appointment expired on September 24th and if the county would be able to collect these payments back?” “I say that we do,” replied Commissioner Ruiz.
Commissioners Court concurred they would have to bring that issue back on another meeting in the near future as an agenda item.
Commissioners Court unanimously approved stopping payment of the salary to County Auditor Ortiz.
Commissioners Court’s action to to stop payment of the County Auditor’s salary raises many legal issues which will need to be reviewed by a Court of Law or an Attorney General Opinion.
