                                 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.



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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


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  .    -




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


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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




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