Untitled Texas Attorney General Opinion ( 1969 )


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  • NEY GENERAL EXAS December 22, 1969 Honorable Burton G. Hackney Opinion No. M-544 Commissioner of Public Welfare John H. Reagan Building, Re: May the Departments of Austin, Texas 78701 Public Welfare and Public Health share the expense Honorable James E. Peavy, M.D. of aircraft allot's salars Commissionersof Health each month e;en though " Texas St'ateDepartment of Health both departments may not Austin, Texas 78756 have used him? Gentlemen: In your letter requesting,an opinion from this office, you submit the following facts, which we quote, In part, as follows: "The Texas State Department of Health and the State Department of Public Welfare entered into Interagency'contracts for the purpose of using a passenger aircraft which was leased by the State Department of Public Welfare. The Interagency Contracts were as follows: 11 . . . "Contract No. IAC (TO-71)-003, dated August 29, 1969. 'Each of the above contracts contained the following identical provisions in relation to the pilot: "The Receiving Agency agrees to pay to the Performing Agency one half of the sum of the gross (monthly salary before deductions) monthly salary regularly paid to the pilot by the Per- forming Agency and the amount of OASDI employer matching and state retirement employer matching. -2597- Hon. Burton (3.Hackney, Hon. James E. Peavy, M.D., page 2 (M-544) I, . . . "Each of these Interagency Cooperation Con- tracts was signed by James E. Peavy, M.D., Commissioner of Health, and Burton G. Hackney, Commissioner of Public Welfare, and approved by the Attorney General's office and by the State Board of Control. . . . "When the two Departments originally entered into the Interagency Cooperation Agreement, and at each subsequent renegotiation, it was understood that there might be times when both Departments would use the aircraft simultaneously, times when only one Department would use the aircraft, and times when neither might use the aircraft; there- fore, the cost per flight hour was calculated on the basis of the flight hours used by each De- partment, as stipulated in the Contract. "It was agreed, however, that a pilot to operate this aircraft for both Departments was essential and there was no way that the Depart- ments could obtain the services of a pilot when needed except for him to be employed by one of the Departments. It was agreed also that the services of the pilot would be available for use at all times by either Department and the payment of his salary h?d no relation to the cost per flight hour nor to whether the aIrcraft was used for any hour or fraction thereof by either Depart- ment within a salary pay period. "There had never been any question raised about the pay of the pilot in relation to the flight hours used by either Department until the voucher covering the period from August 1, 1969 through August 31, 1969, was returned to the State Department of Public Welfare by Mr. H. A. Foerster, Executive DIrector, State Board of Control, in a letter dated November 12, 1969, in which he stated that he was returning the purchase voucher for the reason that no services were performed for the Health Department during the month of August. The State Comptroller also rejected payment and gave as the reason: "'Account does not show any use by your department - how can you be charged expense Of -25g8- . - Hon. Burton 0. Hackney, Hon. James E. Peavy, M.D., page 3 (M-544) operation' (meaning the Health Department)." "It was the Intention of the two Departments and, in our opinion, it is clearly stated in the Contract that the pilot's salary is to be divided between the two Departments for he is performing a service for both Departments. We do not believe that it could be said that no service was performed solely on the basis that the Health Department did not use the aircraft for any flight during the month. The pilot was available for their use at any time, and the Health Department understood and considers that this is a service which Is made available to them. If the specified portion of .his salary cannot be paid by the Health Department during a month when no flight for the Health Department is made, then it would follow that his salary would have to be prorated between the two Departments in proportion to the flight hours used by each Depart- ment. This would raise another serious question because there ,are times when neither Department uses the aircraft, but still the pilot would have to be retain$d on the payroll to be available when needed. With regard to these facts you ask the following question: "Whether the Texas State Department of Health, can pay the State Department of Public Welfare one-half of the salary of the pilot as provided for under the terms of the Inter- agency Agreements irrespective of whether the aricraft is used by Health,,Departmentemployees during any specific month? The contractual provision in question is contained in Interagency Cooperation Contract No. IAC (70-71)-003. This con- tract was entered into by the Texas Department of Public Welfare as performing agency and the Texas State Department of Health as recelvlna agency under the authority of the "Interagency Coopera- tion Act Article 4413(32), Vernon's Civil Statutes, and the Public Welfare Act of 1941, Article 695(c), Vernon's Civil Statutes. This contract was approved by the Board of Control and became effective September 1, 1969, and terminates on August 31, 1971. The provisions of the subject contract which concern the payment of the pilot's salary are plain and unambiguous. It is our opinion, based upon the detailed facts submitted, that the pilot performed services equally for both contracting agencies; and since we find -2599- Hon. Burton G. Hackney, Hon. James E. Peavy, M.D., page 4 (M-544) no conflicting contractual provision or other legal basis on which the State Comptroller would be authorized to refuse pay- ment to the State Department of Health for one half of the monthly salary of the pilot, it is our conclusion that the State Department of Health is not only authorized but obligated under the current contract to pay to the State Department of Public Welfare one half of the salary of the pilot, regardless of whether the aircraft is used by the State Department of Health employees during any specific month. SUMMARY The State Department of Health is not only authorized but obligated, under the current con- tract, to pay to the State Department of Public Welfare one half of the salary of the pilot, re- gardless of whether the aircraft is used by the State Department of Health employees during any specific month. /4 eneral of Texas Prepared by Ivan R. Williams, Jr. Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman Alfred Walker, Co-Chairman Sam Jones Jack Goodman Dyer Moore, Jr. Ed Esquivel MEADE F. GRIFFIN Staff Legal Assistant NOLA WHITE First Assistant -2600-

Document Info

Docket Number: M-544

Judges: Crawford Martin

Filed Date: 7/2/1969

Precedential Status: Precedential

Modified Date: 2/18/2017