                               ATTORNEY GENERAL OF TEXAS
                                             GREG         ABBOTT




                                               December      15,2003



The Honorable Norma Chavez                                  Opinion No. GA-01 30
Chair, Committee on Border and
    International Affairs                                   Re: Authority of a home-rule city to permit a city
Texas House of Representatives                              council member to participate in the municipal
P.O. Box 2910                                               group health insurance program (RQ-007 1-GA)
Austin, Texas 78768-2910

Dear Representative     Chavez:

         You ask three questions about a home-rule city’s authority to allow city council members to
participate in the city employee health insurance program (the “program”). The City of Pleasanton
(the “City”), a home-rule city,’ provides health insurance to its employees but not to city council
members or other city officers. See Pleasanton, Tex., Ordinance 1094 ch. 10, 9 1O-01 (1994)
(adopting “City of Pleasanton Employee Handbook”) (full time employees and certain part-time
employees are provided with medical health insurance). In connection with the employee health
insurance program, you ask

                 (1) If a home-rule charter is silent, may the city council authorize its
                 members to participate in the city employee health insurance
                 program, paying the council member’s premiums with city funds?

                 (2) If such participation is permissible, what mechanism                should be
                 used to authorize such participation; and

                 (3) Would city-paid premiums constitute compensation to the city
                 council members, subject to reporting and withholding under the
                 Internal Revenue Code?2




          ‘Letter fromRepresentative Norma Chavez, Chair, Committee on Border and International Affairs, Texas House
of Representatives,    to Honorable Greg Abbott, Texas Attorney General (June 24, 2003) (on file with Opinion
Committee) [hereinafter Request Letter]; see also Letter from Roberto Maldonado, City Attorney for Pleasanton, to
Representative Gabi Canales, Texas House of Representatives (Mar. 13,2003) (on file with Opinion Committee).

        2See Request Letter, supra note 1 (questions   one and three are paraphrased).
The Honorable Norma Chavez             - Page 2             (GA-0130)




         The City established a health insurance program for its employees a number of years ago.
Although the City has not identified the authority or process by which it established the program,3
home-rule cities as a general matter may provide such employee benefits. A home-rule city derives
its power directly from article XI, section 5 of the Texas Constitution. TEX. CONST. art. XI, 0 5; see
In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002). It need not look to the legislature for grants of
power but only for limitations on its powers, and may exercise all state powers not inconsistent with
the constitution, general laws, or the city’s charter. See In re Sanchez, 81 S.W.3d at 796; Proctor
v. Andrews, 972 S.W.2d 729,733 (Tex. 1998); see also TEX. LOC. GOV’T CODE ANN. $5 51.071-
.072 (Vernon 1999) (home-rule municipality has full power of local self-government).            If the
legislature decides to preempt a subject matter within a home-rule city’s broad powers, it must do
so with “unmistakable clarity.” In re Sanchez, 81 S.W.3d at 796.

         There is, moreover, statutory authority for the kind of health insurance program that the
City wishes to extend to its council members. Local Government Code chapter 172 states that a
political subdivision “may provide health and accident coverage for political subdivision officials,
employees, and retirees,” either directly or by participating in a risk pool. TEX. LOC. GOV’T CODE
ANN. 8 172.004(a) (Vernon Supp. 2004).

         Home-rule cities generally control the compensation of their officers and employees. See
Byrd v. City of Dallas, 6 S.W.2d 738, 740 (Tex. 1928) (city may engage employees upon any
terms of payment acceptable to both parties); Tex. Att’y Gen. Op. No. JM-1194 (1990) at 1.
“Compensation” includes benefits, such as insurance, provided to officers and employees.           See
Friedman v. Am. Sur. Co. of New York, 151 S.W.2d 570, 577 (Tex. 1941) (right to receive
unemployment benefits is not a gratuity prohibited by Texas Constitution article III, section 5 1, but
part of employees’ “compensation”       or “wages”); Byrd, 6 S.W.2d at 740 (pension is part of
employees’ compensation       and not a gratuity prohibited by article III, sections 5 l-53, Texas
Constitution); Tex. Att’y Gen. LO-97-l 00, at 2 (hospitalization insurance provided to officer is an
emolument within Texas Constitution article XVI, section 40); Tex. Att’y Gen. Op. Nos. MW-156
(1980) at 4 ( errors and omissions insurance coverage for county clerk is compensation); WW-73 1
(1959) at 3-4 (statute authorizing county to provide hospital insurance for officers and employees
authorizes compensation, not an unconstitutional gratuity); see also TEX. HEALTH & SAFETYCODE
ANN. 8 263.043 (Vernon 2001) (commissioners court may provide hospitalization insurance as
compensation for services of hospital board of managers). Pursuant to its charter authority to
compensate employees and appointed officers, the City may provide health insurance for those
persons.

        The Pleasanton City Charter provides that “the Mayor shall receive a compensation of $30.00
per regular council meeting attended, and each Council Member shall receive a compensation of
$20.00 per regular council meeting attended.” PLEASANTON, TEX., HOME RULE CHARTER, art. IV,
9 7 (1982). The charter also permits reimbursement of official city business expenses to the mayor



          ‘The City could not locate any ordinances or resolutions that originated the program. See Letter from Roberto
Maldonado, City Attorney for Pleasanton, to Susan Garrison, Assistant Attorney General, Opinion Committee, Office
of the Attorney General (Sept. 18, 2003) (on file with Opinion Committee).
The Honorable Norma Chavez              - Page 3             (GA-0130)




and city council where provided in the annual city budget. See id. The answer to your first question
depends on how the charter provision setting city council members’ compensation is construed. If
the city charter is construed to limit council members’ compensation to the stated amounts, the city
may not provide additional compensation in the form of health insurance coverage to them. See
Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641, 643-44 (Tex. 1975) (an
ordinance or resolution adopted by a home-rule city must be consistent with the city charter). On
the other hand, if the charter provision is not construed as a limit on city council members’
compensation, the city may provide them, additional compensation in the form of health insurance.
This office does not ordinarily construe city charters or ordinances, in deference to municipal
officials’ authority to construe their municipality’s ordinances and charters. See Tex. Att’y Gen.
Ops. Nos. GA-0068 (2003) at 2 n.2; JC-0143 (1999) at 3; JM-846 (1988) at 1. Thus, we do not
determine whether or not the city charter sets the maximum compensation city council members may
receive. In construing this charter provision, City officials should rely on the rules for construing
statutes. See Mills v. Brown, 3 16 S.W.2d 720, 723 (Tex. 1958). If the charter sets the maximum
compensation for city council members, the City may not provide additional compensation to city
council members absent an amendment to the charter.4 See generaZZy TEX. LOC. GOV’T CODEANN.
$ 9.004 (Vernon 1999) (election to amend charter). If the charter does not set their maximum
compensation, the City may provide the additional compensation without a charter amendment.

        Your two additional questions are premised on the assumption that Pleasanton city council
members may participate in the employees’ health insurance program.         Although we cannot
determine whether the city charter permits council members to participate in the program, we will
address these questions.

         Assuming that the city charter allows council members to participate in the city employee
health program, you wish to know how the city council may authorize such participation.             The
answer to this question depends in part on the terms of the health insurance program. If the program
itself permits elected city officers such as city council members to participate in it, the city council
may determine whether to extend coverage to its members, absent any different procedure set out
in the program. See City of Coppell v. Gen. Homes Corp., 763 S.W.2d 448,456 (Tex. App.-Dallas
1988, writ denied); Cook v. City of Addison, 656 S.W.2d 650, 657 (Tex. App.-Dallas 1983, writ
ref d n.r.e.) (a city acts by and through its governing body); see also Stirman v. City of Tyler, 443
S.W.2d 354,358 (Tex. Civ. App.-Tyler 1969, writ ref d n.r.e.) (city council may bind the city only
by acting as a body in a duly assembled meeting).

         If the city employee health program does not authorize coverage for city council members,
the council must amend it to authorize such coverage. A health insurance program adopted by city
ordinance may be amended only by adoption of another ordinance. See City ofHutchins v. Praszpa,
450 S.W.2d 829, 832 (Tex. 1970) (city ordinance may be repealed only by ordinance, and not by
resolution).




           4The city council might also consider whether its members would wish to apply their per-meeting   compensation
to participation in the insurance program.
The Honorable Norma Chavez             - Page 4             (GA-0130)




         You finally ask whether insurance premiums paid by the City on behalf of city officers would
be compensation subject to reporting and withholding under the Internal Revenue Code. This
question is one of federal tax law appropriately addressed to the Internal Revenue Service rather than
this office. See Tex. Att’y Gen. Op. No. JC-0482 (2002) at 7. While we will point out certain
relevant provisions, we advise the City to direct its question to a tax professional or the Internal
Revenue Service?

         An employee’s gross income as a general rule does not include employer contributions to an
accident or health plan. See I.R.C. 9 106(a) (2003); 26 C.F.R. 5 1.106-l (2003). Whether the City’s
health insurance program falls within the general rule will depend upon its specific characteristics.
See, e.g., I.R.C. 8 106 (2003); 26 C.F.R. $0 1.104, 1.105-l-l. 105-5 (2003). If the city health
insurance program is within the general rule stated by the Internal Revenue Code, the premiums paid
to provide coverage to city officers will not be compensation subject to reporting and withholding.
See 26 C.F.R. 4 3 1.3401(c)-1 (2003) ( an “employee” for purposes of withholding tax includes
officers and employees of a state or any political subdivision of a state).




          ‘The Tax-Exempt and Government Entities Division of the IRS provides assistance to governmental       entities.
See Internal Revenue Service, IRS History and Structure, avaiZabZe at http://www.irs.gov/govt/fslg/index.html        (last
visited Oct. 2 1, 2003).
The Honorable Norma Chavez         - Page 5       (GA-0130)




                                        SUMMARY

                        A city’s payment of health insurance premiums for its
               officers or employees is a form of compensation.          The City of
               Pleasanton may allow city council members to participate in its health
               insurance progratn only if this action is consistent with Pleasanton’s
               home-rule city charter provisions setting the city council members’
               compensation.      The appropriate procedure for including council
               members in the program depends, in part, on the terrns of the
               program.     Subject to certain exceptions in the Internal Revenue
               Code, an employee’s gross income does not include employer
               contributions to an accident or health plan. Questions of federal tax
               law should be directed to the Internal Revenue Service.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
