Schawe ignores DA advice, insists on stipend

By LPR Staff

Editor/POST-REGISTER

Budget preparation, in any government setting, boils down to a numbers game.

But on Monday morning, as the Caldwell County Commissioners Court inched closer to passing a budget that threatens an 7.9 percent tax increase for Caldwell County property owners, the number of greatest concern was “40 p

ercent.”

Under State law, a County Judge who devotes more than 40 percent of his or her time to “judicial duties,” is eligible to receive a stipend from the State of Texas for performing those duties. In the case of Caldwell County Judge Kenneth Schawe, that stipend would amount to $25,200.

Schawe shocked members of the public and the administration alike, earlier this month, when he announced that he intended to take on judicial duties and claim the stipend during the coming budget year. The decision stands in direct violation of Schawe’s campaign promise to dedicate 100 percent of his time to the administrative functions of the job of County Judge.

Some see the decision as a betrayal. Schawe refers to it as “changing [his] mind.”

Caldwell County District Attorney Fred Weber took a harder line, referring to the decision as “legally and ethically questionable,” and warning the Commissioners of potential legal consequences of mishandling the statute.

Additionally, Weber said, the County Judge taking on judicial duties in Caldwell County is needless, and potentially a misinterpretation of the intent, if not the letter of the law.

“The point of this was to provide this stipends for the counties that don’t have County Courts at Law,” Weber instructed the Commissioners after performing extensive research on the statute over the last weeks. In those cases, he said, it is expected for a County Judge to perform not only administrative duties, but to oversee judicial duties, such as misdemeanor, probate and small civil cases. However, he said, Caldwell County’s circumstances do not call for such things.

“ [County Court at Law] Judge [Edward] Jarrett says that he holds Probate Court twice a month, in two afternoons,” Weber said. “He estimates that he spends around 10 – 12 hours a month doing Probate Court.”

Weber went on to estimate that, in keeping with the legal statute that 40 percent of a County Judge’s time must be devoted to judicial functions in order to collect the stipend, Schawe would only be able to dedicate 18 hours a month to the County’s administrative business, in order to legally collect the stipend.

“An Opinion from the Attorney General clearly defines ‘judicial functions’ as relating to misdemeanor and civil matters, and not the administrative duties involved with the County or the Commissioners Court.”

Schawe argued that much of his time is spent working on and approving orders, such as Orders of Evacuation during the flooding events, or Emergency Orders instilling the outdoor burning ban, and other such orders and resolutions – actions he considers judicial in nature. In addition, he said, he has spent a great deal of time this year taking the necessary training and receiving the certifications to be eligible to handle probate matters.

Further, he noted, the County Judges in several surrounding counties currently accept the stipend and the responsibilities that come along with it.

“Judge, in my line of work, I hear ‘everyone else does it’ all the time,” Weber quipped. “My job is to offer my client legal advice. What you decide to do with that advice is up to you.”

After hearing Weber’s presentation, Commissioner Alfredo Munoz said he felt the judge was “not qualified” to begin hearing Probate cases, despite the training he has taken in the area, and that his decision to do so was inappropriate.

Bristling at the notion that questioning his acceptance of the stipend was a personal attack on him, Schawe said he fully intends to begin hearing Probate cases, and will collect the stipend. Indeed, an affidavit sworn by Schawe on Aug. 8 and received by the State Comptroller’s Office on Aug. 10, indicates that at least 40 percent of his duties performed as County Judge are judicial functions.

A consequence of decision inflames another trigger point that has been running hot with the Court as budget talks have developed this summer. Effectively, Schawe’s acceptance of the stipend, in addition to a proposed 5 percent salary increase, raises Schawe’s salary to a level that would block the Commissioners from denying a request from the District Judges to raise the County Auditor’s salary to $75,000.

Under State law, a County Auditor may not have a salary set higher than the highest-paid elected official in the County. However, upon the retirement of the former County Auditor, the Commissioners Court approached the State Legislature for a special waiver of that statute; the intent was to allow Caldwell County to offer a competitive salary to draw a competent and qualified auditor.

The Legislature relented, granting the waiver with the caveat that, if the salary of the County Auditor exceeded the salary range of the highest-paid elected official, the salary is subject to the approval of the Commissioners Court.

If Schawe accepts the stipend and the pay increase is approved, his salary for the coming fiscal year would be $76,803, just high enough to clear the District Judges’ Order, without triggering necessary support from the Commissioners.

Currently, the County Auditor’s salary is set at $64,146. The increase to $75,000 translates to nearly 17 percent, far above the 3 to 5 percent increase being offered to other County employees and elected officials.

When the current County Auditor was hired, she was offered a salary of $70,000 by the District Judges, which was later rejected by the Commissioners in favor of the $64,146, which was equal to the salary paid to the previous Auditor.

Those other pay increases, too, were a point of concern for Commissioners, who struggled to understand the rhyme and reason behind the salaries being allocated as they were. Schawe contends that he calculated five percent of each department’s salary, allocated three percent to be distributed evenly among the employees, and gave each elected official and department head carte blanche to allocate the remaining funds as they saw fit, in the form of merit increases.

“There are some people that are working harder, and deserve more of a raise than the people that might not be working as hard,” Schawe said. “This way, everyone gets something but everyone doesn’t get the same amount, because maybe everyone doesn’t deserve the same amount.”

To fund this budget, and the increases that come with it, the current incarnation of the Fiscal Year 2016-2017 budget is predicated on an increase in the tax rate from $0.7175 to $0.7753 per $100 of valuation. For the average property valued at $100,000, this would mean a tax increase of $57.80 per year, or a total Caldwell County tax bill of $775.30.

The Caldwell County Commissioners Court will hold the first of two required public hearings to discuss the budget and tax rate on Tuesday, Sept. 6, 2016, at 9:30 a.m. in the second floor courtroom of the historic Caldwell County Courthouse.

The proposed budget can be found online at www.co.caldwell.tx.us under the tab “Financial Transparency/Proposed Budgets.”