Op. Atty. Gen. 124a

COUN'I"Y COMMISSIONERS: COMPENSA'I`ION PER DIEM AL.-"_GWANCE. Authority

to provide per diem allowance does not permit a per meeting payment. Rer diem payment

permitted for meetings of county board. Members may not be paid multiple per diem for

meetings held on the same day, absent independent statutory authority Minn. Stat. §§ 375.055.

375.065.

1243

Aprii zs. 1994

Marl< B. Dayton

State Auditor

Suite 400

525 Parlt Street

Saint Paul. MN 55103

Dear Mr. Dayton:

In your letter you set forth substantially the following:

FAC"l`S

Minnesota law generally authorizes county commissioners to receive

"per diem" payments in addition to salary, for the performance of official

duties.

It is current practice in many counties to interpret "per diem" as a per meeting

fee. However. we find no authority for the payment of a per meeting fee

under current Minnesota Statutes. and therefore seek your advice on the

authority for these payments

Crow Wing County. for example established a per meeting fee of $25.00 on

Decernber 30, 1991. for county meetings, subject to an exception for Planning

Commission and Board of Adjustment meetings, which are $30.00 per

meeting. This resolution was reafl"u'med on 0ctobei‘ 5, 1993.

During the course of our review of per diem payments we noted that multiple

payments of $25.00 were paid for the same day for attendance at such

meetings as community health service, planning committee, solid waste

committee. ambulance meetings, community corrections, and county health.

In addition, meeting fees for sub»committees of the Board are paid for such

meetings as building committee. county highway, land and forestry and county

sheriff. We noted instances where per meeting fees were paid for attendance

at township, fire and municipal council meetings on a day where a per meeting

fee was also paid for attendance at a committee of the County Board or a

special meeting of the Board.

More generally, we are advised by our field staff that some counties also pay a

per diem fee for ittendance at the regular board meeting and all other special

Mark B. Dayton

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Aioril 28 , 1994

meetings and committees allowing multiple per diem payments for attendance

at these events on the same day. ln addition. it has been reported to us that

commissioners submit per diem claims for attendance at township meetings

and other meetings of local units of govemment. 'l`he individual commissioner

determines whether attendance and submission of claims for per diem payment

is appropriate

You then ask substantially the following questions

QUESTION ONE

May counties establish a schedule of "per meeting" payments rather than

per diem payments for county commissioners in addition to their salaries‘?

OPINION

V e answer your question in the negative Compcnsation for county commissioners in

most counties is provided pursuant to Minn. Stat. §§ 375.055-375.065 (1992). Minn. Stat.

§ 375.055` subd. l, provides in part:

The county commissioners in all counties. except Hennepin and Ramsey,

shall receive as compensation for services rendered by them for their respective

counties, annual salaries and in addition may receive p;r diem payment and

reimpursemept for necessagg expenses in performing the dpties of the office as set

by resplution of the coung board. The salary and schedule of per diem payments

shall not be effective until January 1 of the next year. The resolution shall

contain a statement of the new salary on an annual basis. Thg board may

establish a schedule ot` per diem payments for service by individpal coungv_

commissiopers on anv hoard, committee or conunissiop of county government

including com_rnittees on the board, or for the perfogpance of se;viccs by

individual acting commissioners when required by law.

(Emphasis added)

Minn. Stat. §475.06, sub-d. 1. provides in part:

'l`he members of the county boards in counties other than Hennepin, Rarnsey, and

St. Louis, may be paid a per diem pursuant to Sectiop 375.055, suglivisipp l,

for gach day necessarily occupied in the discharge of their oft`igial duties while

acting on any committee under the direction of the board, and may be paid their

actual and necessary traveling expenses in accordance with Section 471.665 for

travel incurred in the discharge of the committee work. Any committee may be

comprised of all of the members of the county board.

(`Emphasis added)

.\/lark B. Dayton

Page 3

Ar)ril 28 , 1994

Thus. county commissioners are authorized to receive annual salaries and may also be

paid "per diem" for performing the duties of office. including work on committees "under the

direction of the board." and individual services as commissioners "when required by law. "

As noted in the materials included with your letter. the plain meaning of the term

"per diem" is "by the day" or "pay for a day`s service" Black’s Law Dictionary (Rev.

4th Ed.) 1293. Words in statutes are generally to be construed in accordance with their

common and approved usage Minn. Stat. § 645408(1) (1992). Thus. we must assume. absent

any authority to the contrary_ that the "per diem" compensation authorized by the foregoing

statutes is intended to be computed and allowed by the day in which services are performed.

rather than with respect to each "meeting" attended or each separate task performed. This

concept is clearly expressed in Section 475.06. subd. l. quoted above iii stating that the

payment may be made for "each day necessarily occupied " in the discharge of duties.

QUEST!ON TWO

May a county board member receive a "per diem " for attendance at the regular meeting

of the board?

OPINION

We answer your question in the affirmative As noted above, Section 375.055,

authorizes the county board of commissioners to provide. by resolution. a salary and schedule

of per diem payments to be paid to commissioners for performing “the duties of office." The

board is required by statute to meet on the "t`irst Tuesday after the first Monday iri January,

and on other days it prescribes as necessary for the interests of the county." Minn. Stat.

§ 375.07 (1992). lt seems clear that attendance at meetings of the board is one of the "duties

of the office" for which per diem payments may be allowed. Therel`ore. it is our view that

such payment are permitted to the extent prescribed in the resolution of the board establishing

the schedule of per diem payments

This opinion is. howevcr. subject to the provisions of Minn. Stat. §375.065 (1992),

which prohibits any county commissioner whose salary is more than 50 percent of the

Mark B. Dayton

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Ar)ril 28 , 1994

1

governor`s salary. from receiving any per diem for `attendance at meetings related to the

business of any local government unit. "

QUESTION THREE

May a county board member receive a per diem on the day of the county board

meeting if the member also attends a committee meeting of the board or performs

other board related services on that day'?

OPINION

The response to Question two above would appear to provide the answer to this question

as well.

QUESTION FOUR

May a county board member receive multiple per diem payments on the same day

when the board member attends several committee meetings and performs such

services as road inspection?

OPINION

We answer your question in the negative As noted above, the "per diem" authorized by

Sections 375.055 and 375.06 is to be paid by the "day" spent in performing the duties of

office. However. inasmuch as the law, in many circumstances, does not recognize fractions of

a day. it is generally held that no particular length of time spent in a given day is required to

entitle an officer to collect per diem for a "day" of work. B, ga Op. Att. Gen. 124a,

May 19, 1959, Ann_ot. l ALR. 276, 277. On the other hand. it is also generally held that an

officer cannot collect more than one day’s per diem pursuant to the same authority, regardless

of the number of hours spent in performing work in a single day. _P_t_npo_t. 1, ALR, 276, 278.

Minn. Stat. §375.055. subd. 1. authorizes payment to commissioners by the day for

performing the duties of office. Section 375.06 authorizes the same per diem "pursuant to

Section 375 .055, subdivision l" for each day necessarily occupied in the discharge of official

duties while acting on any committee under the direction of the board. Thus. it appears that

per diem whether for committee work or other "duties of office" is payable under the single

authority of Section 375.055. subd. l.

Marlt B. Dayton

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A_r)ri]_ 28 , 1994

'l`heret`ore. it is our view that a county commissioner. when authorized by resolution of

the board. may collect one per diem for each day spent in performing the official duties

connected with the ofi'ice. regardless of how few or many separate duties connected with the

office are performed in such day.

We recognize. however. that there might exist other statutes which provide independent

authority for per diem payments in addition to those authorized by Sections 375 .055. 375.06.

Minn. Stat. § 375.055. subd. 5. provides iii part:

Exccpt as provided herein nothing in this section shall limit the right of a county

commissioner to collect and retain any fees. per diem payment made pursuant to

subdivision l. or any mileage or expense allowance. or reimbursement of expenses

in attending meetings or in the conduct of the business of a board. commission or

committee of county government on which the commissioner serves. which the

commissioner is now authorized bv anv other law to collect and retain in addition to

the stated annual salagg.

(Emphasis added)

This subdivision has recognized that commissioners in addition to serving as such,

might serve on other bodies of government for which additional compensation is separately

authorized by statute. ln those situations we have concluded that more than one per diem

might be retained for a given calendar day in which a commissioner performs commissioner

duties and also performs duties for a statutorily separate body with independent authority to

compensate its members For example, in Op. Atty. Gen. 1243, May 19, 1959, we concluded

that a county board member might receive per diem pursuant to Section 375.06 for

commission work as part of a road viewing committce. and could also retain per diem for a

county welfare board meeting held the same day. As noted in that opinion. Section 393 .03 at

that time provided that each member of the welfare board may receive per diem "in addition to

other salary received from any other source." The opinion noted that "when county

commissioners attend meetings of the county welfare board, they do so as members of that

board and not as county commissioners "

Marlt B. Dayton

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Apri]. 28 , 1994

Likewise in Op. Atty. Gen. 124a. April 12. 1972_ we concluded that a commissioner

could receive two per diem allowances for attending a meeting of the welfare board and a

meeting of the hospital board on the same day. Again. at the time. both the hospital board and

welfare board were constituted under separate statutes each independently authorizing payment

of added compensation

Thus. there may be instances in which a commissioner might be separately authorized to

receive a per diem apart from the one authorized for work as a county commissioner It

appears, however. that such separate authority has been. for the most part. eliminated

In 1975` when the legislature amended Minn. Stat. §375.055. subd. l. to generally

authorize the payment of per diem to county commissioners in addition to salary, it also

amended other statutes pertaining to various boards and committees related to county

government to remove separate authority for payment of per diem to county commissioners

who are members. and to direct that Section 375.55. as amended, be the source of per diem

authority for commissioners serving with such bodies. Act of June 4. 1975, ch. 301,

1975 Minn I_.aws 816. M. §§ l (Extension Committee). 2 (drainage proceedings), 4,5 (tax

forfeited land sales), 6 (fence viewings) 10 (miscell.aneous county boards. agencies or

committees). 12 (nursing home boards). 13 (welfare boards). 14 (planning comrnissions).

We have not located independent authority for payment of per diem other than that

provided for in Section 375.055 for work with the committees mentioned iii your letter or for

such things as "road irispection.°'1 Absent such independent authority. it is our view that a

commit toner may receive. under Section 375.055, one day’s per diem for each day spent in

carrying out his or her county duties regardless of how many or few separate tasks are

involved.

l. - § Op. Atty. Gen. 1930, No. 273. P. 248 (enclosed) which distinguishes between

legitimate "committee" work and undertaking of the function of the town engineer.

Mark B. Dayton

Page 7

A_r)ril 28, 1994

QUES'I'ION FIVE

Is there authority to pay a per diem for attendance at meetings of other bodies

such as township meetings or fire department meetings and if so, must t;'ie annual

resolution detail which meetings other than county meetings qualify for per diem?

OPINION

Except as qualified below, we answer your question in the negative. The authority to

pay per diem for attendance at such meetings would depend upon whether that attendance

could reasonably be viewed as acting on a committee under the direction oi` the board (Minn.

Stat. §375 96. subd. l), or service by an individual which is either "required by law” or

associated with a "board. committee. or commission of county government," (Minn. Stat.

§ 375.055, subd. 1). We are not aware of specific instances iii which a county commissiomr,

as such. would be expressly required by law to attend town meetings or fire department

meetings Nor would such groups be considered boards, commissions or committees of the

county.

lt is, of course. possible that the county board may, in appropriate circumstaimes,

designate one or more commissioners as a committee to perform some fact-finding or liaison

function which would necessitate attendance at meetings of some organizations or group

outside of county goveriunent. In those circumstances per diem would seem to be authorized

pursuant to Minn. Stat. § 375.06. subd. 1. However. we do not find authority for payment of

per diem for general attendance where a commissioner simply decides on his or her own to

attend such meetings g Op. Atty. Gen. 1930, No. 273, P. 248; 12»"..-A, June 15. 1951

(copy enclosed).

Best regards.

HUBER'I` H. HUMPHREY III

Attomey General

Enclosure

. etO