Latest COG Rules

Latest Council of Government Rules and Amendments, March 18, 2001

1 TAC 5.81

Title 1. ADMINISTRATION

Part I. OFFICE OF THE GOVERNOR

Chapter 5. BUDGET AND PLANNING OFFICE

Subchapter A. FEDERAL AND INTERGOVERNMENTAL COORDINATION

DIVISION 3. STATE PLANNING ASSISTANCE GRANTS

The Office of the Governor adopts without changes revisions to Sections 5.81, 5.82, 5.84, 5.85, 5.86, 5.87, 5.88, 5.89 and 5.90. Section 5.83, Financial Audit Requirements, is adopted with changes. The proposed rules were published in the March 17, 2000 issue of the Texas Register (25 TexReg 2233). The revisions clarify existing provisions and add new reporting and compliance requirements enacted by the 76th Texas Legislature in 1999 for regional councils in the areas of financial management, travel, nepotism, lobbying and procurement.

A public hearing was not requested nor held on these rules. In response to written comments from the Texas Association of Regional Councils, the 60 day prior notification requirement in subsection (b) of Section 5.83, Financial Audit Requirements, was changed to 120 days to better ensure that regional councils receive adequate notification before they start the audit engagement process, and the language of subsection (g) of that same section now makes clear that audit costs may be allocated among all funding sources, in accordance with OMB Circular A-133 and the Uniform Grant Management Standards (Chapter 783, Texas Government Code). No other comments were received. The remaining sections are adopted without change and will not be republished.

The amendment is adopted pursuant to the authority contained in Sections 391.009 and 391.0095, Local Government Code, as amended, which direct the governor to issue rules relating to the operation and oversight of regional planning commission.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on April 20, 2000.

_______________________________________

Kevin Van Oort, Assistant General Counsel

Office of the Governor

1 TAC 5.81

Title 1. ADMINISTRATION

Part I. OFFICE OF THE GOVERNOR

Chapter 5. BUDGET AND PLANNING OFFICE

Subchapter A. FEDERAL AND INTERGOVERNMENTAL COORDINATION

DIVISION 3. STATE PLANNING ASSISTANCE GRANTS

Section 5.81 Definitions

The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise.

Automobile allowance—a monthly or other periodic stipend to defray the costs of operating a motor vehicle, which does not require mileage or other documentation.
City--Any incorporated city, town, or village in the State of Texas.
Commission--A regional planning commission, council of governments, <etb>development council<et> or similar regional planning agency created under this Act.
Comprehensive development planning process--The process of:

(A) assessing the needs and resources of an area;
(B) formulating goals, objectives, policies, and standards to guide its long-range physical, economic, and human resources development; and
(C) preparing plans and programs, which:
- (i) identify alternative courses of action and the spatial and functional relationships among the activities to be carried out thereunder;
- (ii) specify the appropriate ordering in time of such activities;
- (iii)take into account other relevant factors affecting the achievement of the desired development of the area;
- (iv) provide an overall framework and guide for the preparation of function and project development plans;
- (v) make recommendations for long-range programming and financing of capital projects and facilities which are of mutual concern to two or more member governments; and
- (vi)make such other recommendations as may be deemed appropriate.
- (vii) A regional planning commission is in compliance with the requirement that it undertake a comprehensive development planning process if it has an on-going process to coordinate its various functional planning efforts and periodically completes and updates strategic and program plans required by its governing body or by state and federal programs in which the regional planning commission participates.
General purpose governmental unit--A county or incorporated municipality.
Governmental unit--Any county, city, town, village, authority, district or other political subdivision of the state.
Indirect costs--Costs that are incurred for a common or joint purpose benefiting more than one cost objective, that are not readily assignable to the cost objectives specifically benefited without effort disproportionate to the results. The governor shall use the federal Office of Management and Budget Circulars A-87 and A-122 or any rules relating to the determination of indirect costs adopted under Chapter 783, Government Code, in administering indirect cost recovery provisions of these rules.
Officially sanctioned conference or meeting--A conference or meeting conducted or attended as a part of a regional planning commission’s official business.
Pass-through funds--Funds, including subgrants or subcontracts, that are received by a regional planning commission from the federal or state government or other grantor for which the regional planning commission serves merely as a cash conduit and has no administrative or financial involvement in the program, such as contractor selection, contract provisions, contract methodology payment, or contractor oversight and monitoring.
Performance report--An analysis of progress made toward achieving goals and objectives set internally or by outside contract or other agreement.
Productivity report--An analysis of the efficiency with which activities are carried out or goals and objectives are met. This analysis provides information on how well the organization used its resources to produce selected goods and services.
Region, area, or regional--A geographic area consisting of a county or two or more adjoining counties which have common problems of transportation, water supply, drainage or land use; similar, common, or interrelated forms of urban development or concentration; or special problems of agriculture, forestry, conservation, or other matters; or any combination thereof. It is the intention of these provisions to permit the greatest possible flexibility among the various participating governmental units to organize and establish commissions most suitable to the nature of the area problems as they see them.

Section 5.82 General Regulations

(a) The State of Texas will recognize one regional planning commission organized under Chapter 391, Local Government Code in each state planning region or subregion. Only the regional planning commission will be eligible for a state planning assistance grant.
(b) A local government desiring to participate in a regional planning commission must join the regional planning commission serving the state planning region in which that local government is located.
(c) All applications from regional planning commissions for financial assistance programs covered by the Texas Review and Comment System shall be submitted to the Office of the Governor for review and comment prior to the submission to any federal, state, or other agency.
(d) Funding under the state planning assistance program will be based on member counties and incorporated municipalities as of September 1 for the fiscal year in which funds are being sought. The population of member cities in nonmember counties will be included in computing the amount of state grant eligibility.
(e) State aid can be expended for any legal activity of a regional planning commission as defined in Section 391.005, Local Government Code. State funds may be utilized as local matching funds for any other state or federal program approved in the work program. In no case may state aid be used to pay entertainment expenses or other prohibited costs.
(f)Regional planning commissions may apply for state planning assistance funds at any time during the first 11 months of the state fiscal year which begins September 1.
(g) For the purpose of calculating state planning assistance, the United States Census Bureau's most recent decennial census will be utilized.
(h) A commission applying for state planning assistance funds must have funds available annually from sources other than the state or federal governments equal to or greater than one-half of the state planning assistance for which the commission applies.
(i)The applicant may count local cash funds which will be collected during the applicant’s entire fiscal year toward meeting the requirement of Section 5.82 (h). Local funds carried forward from a previous fiscal year, above the amount that was equal to one-half of the state planning assistance funds for which the commission applied, may be counted in subsequent fiscal years as funds available from sources other than the state or federal government.
(j) The nepotism provisions of Chapter 573, Government Code, apply to a regional planning commission.

Section 5.83 Financial Audit Requirements

Not later than nine months after the close of each regional planning commission’s fiscal year, each regional planning commission shall submit to the Office of the Governor a complete financial audit prepared by a certified public accountant, in accordance with generally accepted financial auditing procedures and the provisions of OMB Circular A-133 and the State Single Audit Circular, if applicable.
(b) The annual audit will be commissioned by the governing body of the regional planning commission unless the governor notifies each affected regional planning commission in writing at least 120 days prior to the end of the regional planning commission’s fiscal year for which the audit would be performed that the Governor’s Office intends to commission the audit.
(c) In lieu of commissioning the audit, the Office of the Governor may require specific elements to be included in the annual audit.
(d) The governor will place primary reliance upon state single audit coordinating agencies to review regional planning commission audits. However, the governor may require planning commission audits to be reviewed by Office of the Governor auditors or by a third party or parties.
(e) The audit shall include:
1. the amount and source of funds received by the regional planning commission;
2. the amount and source of funds expended by the regional planning commission;
3. an explanation of any method used by the regional planning commission to compute an expense of the regional planning commission, including computation of any indirect cost of the regional planning commission; and
4. a statement of indirect costs which compares actual indirect cost allocations with the proposed indirect cost allocation plan used to establish an indirect cost rate.
(f)The Office of the Governor may, by rule, establish standards and guidelines which regional planning commissions must use in selecting independent auditors.
(g) Audit costs are allowable costs as identified in the Uniform Grant Management Standards (Chapter 783, Texas Government Code) and are allocable to the various programs administered by a regional planning commission.

Section 5.84 State Planning Assistance Application Package

(a)It is the policy of the Office of the Governor to receive applications for state planning assistance at least 30 days prior to the beginning of each state fiscal year. The Office of the Governor will award all of the regional planning commission's state planning assistance allocation upon receipt and approval of a completed grant application and the regional planning commission's audit for the previous fiscal year. Absent an approved audit, the regional planning commission will be eligible to receive one-half of its allocation, with the remainder to be disbursed upon receipt and approval of the required audit and compliance with contract provisions, applicable state law, rules and appropriation act riders.
(b)Copies of the State Planning Assistance Grant Application Package may be obtained from the Office of the Governor, Budget and Planning, P. O. Box 12428, Austin, Texas 78711-2428.

Section 5.85 Required Prior Approval of Salaries

(a) For each fiscal year, a regional planning commission shall adopt a salary schedule for all classified positions and shall identify and specify salaries for all positions exempted in accordance with Subsection (d).
(b) The salary schedule adopted by the regional planning commission may not exceed, for classified positions, the state salary schedule for classified positions as prescribed by the general appropriations act adopted by the most recent legislature. A regional planning commission may adopt a salary schedule that is less than the state salary schedule.
(c) A salary for a position classified under the regional planning commission’s salary schedule may not exceed the state salary that has been approved by the state auditor's office for comparable work.
(d) A position may only be exempted from the classification salary schedule adopted by the regional planning commission if the exemption and the salary paid for the exempt position is within the range determined appropriate for state exempt positions by the state auditor.
(e) Salaries charged to state grant funds, directly or indirectly, will be considered reasonable to the extent that they are comparable to salaries paid for similar positions in the labor market in which the employing planning commission competes for the kinds of positions involved. Wage and salary comparability will be determined from the State Auditor’s state classification plan, positions exempt from the state classification plan, biennial reports on state classification and pay and reports on benefits as a percentage of salary, as well as the U. S. Department of Labor’s Employment Cost index and other appropriate sources, including documentation provided by the regional planning commission.

A regional planning commission shall annually submit, as approved by its governing board, its salary schedule, including the salaries of all exempt positions, to the director of the Office of the Governor’s Budget and Planning Division not later than the 45th day before the date of the beginning of the regional planning commission's fiscal year.
If, within 30 days of the submission, the Office of the Governor has not responded in writing disapproving the schedule, the salaries shall be deemed to have been accepted.
If the governor objects to a regional planning commission's salary schedule, or a portion thereof, the regional planning commission shall be so notified in writing within 30 days of receipt of the schedule, and the portion of the schedule that the governor objects to may not go into effect until revisions or explanations are given that are satisfactory to the governor and the governor approves that portion of the schedule.
A disapproved portion of a salary schedule may not be paid directly or indirectly from state-appropriated funds.

(4) Actual salary rates paid to employees in either classified or exempt positions may be adjusted from time to time during the commission’s fiscal year so long as the resultant actual salary rate does not exceed the applicable maximum rate established in the schedule submitted in accordance with Subsection (f).

This section does not apply to a regional planning commission if the most populous county that is a member of the regional planning commission has an actual average weekly wage that exceeds the state actual average weekly wage by 20 percent or more for the previous year as determined by the Texas Workforce Commission in its County Employment and Wage Information Report.
A regional planning commission exempted from the salary provisions by Section 5.85(g) of these rules shall annually file an exemption notice with the director of the Office of the Governor, Budget and Planning Division.
The exemption notice shall contain supporting information from the Texas Work Force Commission’s County Employment and Wage Information Report for the applicable period.<et>

Section 5.86 Restrictions on Regional Planning Commission Costs

(a)In reimbursing regional planning commission personnel for travel expenses, a regional planning commission may not expend funds for travel in excess of the amount that may be expended for state personnel under the general appropriations act or travel regulations adopted by the comptroller for mileage, per diem, and lodging reimbursement. Regional planning commission personnel eligible to receive reimbursement for actual expenses for meals and lodging may not receive reimbursements at a higher rate than those allowed for state personnel authorized to receive reimbursement for actual expenses.
(b) A member of the governing body of a regional planning commission may not be reimbursed from state-appropriated funds, including federal funds, for official travel in an amount in excess of the rates set for travel by state board and commission members.
(c)If a hotel is unable or unwilling to provide a commission’s officers or employees a rate equivalent to the rate provided to state employees, or if a negotiated conference rate for an officially sanctioned conference or meeting exceeds the applicable state reimbursement rate for lodging, a regional planning commission may reimburse for lodging expenses at the rates of the expenses incurred.
(d) A regional planning commission may not expend any funds for the purchase of alcoholic beverages or entertainment.
(e) A regional planning commission must comply with provisions equivalent to those applied to local governments by Chapter 252, Local Government Code, when purchasing goods or services.

A regional planning commission may not spend more than 15 percent of its total expenditures on indirect costs. For the purposes of this subsection, the regional planning commission's capital expenditures and any subcontracts, pass-throughs, or subgrants may not be considered in determining total expenditures. In this subsection, "pass-through funds" means funds, including subgrants or subcontracts, that are received by a regional planning commission from the federal or state government or other grantor for which the regional planning commission serves merely as a cash conduit and has no administrative or financial involvement in the program, such as contractor selection, contract provisions, contract methodology payment, or contractor oversight and monitoring.
The executive director or chief financial officer of each regional planning commission shall annually, based upon audited financial data, certify to the director of the Office of the Governor’s Budget and Planning Division and to each awarding agency that its indirect costs for the preceding year have not exceeded 15 percent of total expenditures, as defined in Sec. 5.86 (f).
If indirect costs exceed 15 percent as defined in Sec. 5.86 (f), the regional planning commission will credit each affected awarding agency by reducing indirect charges on a pro rata basis to such affected agencies in the subsequent fiscal year.
In the case of one-time grants or failure to reduce indirect charges as required by Sec. 5.86 (f) (2), the regional planning commission will rebate overcharges of indirect costs on a pro rata basis to the affected awarding agency or agencies.
(g) A regional planning commission may not expend funds for an automobile allowance for a member of the governing body of the regional planning commission if the member holds another state, county, or municipal office.

Section 5.87 Reports

(a) Each regional planning commission shall provide annually to the director of the Office of the Governor’s Budget and Planning Division, not later than 90 days following the end of the regional planning commission’s fiscal year:
(1) a report of the regional planning commission's productivity and performance during the annual reporting period, based upon the annual work program required by Section 5.90 ;
(2) a projection of the regional planning commission's productivity and performance during the next annual reporting period based upon the annual work program required by Section 5.90;
(3) a report of any assets disposed of by the regional planning commission.
(b) A regional planning commission shall send to the governor, the state auditor, the comptroller, and the Legislative Budget Board a copy of each report or audit required under these rules. If the governor determines that there is a question about the appropriateness of an expenditure or other action of a regional planning commission, the governor shall report the expenditure or other action to the state auditor for review.
(c) An entity required to file an audit or a report under these rules shall file the initial audit or report not later than September 1, 2000.
(d) A regional planning commission shall submit any other report or audit required by the governor.

Section5.88 Sanctions

If a regional planning commission fails to submit a report or audit required under this section or is determined by the governor to have failed to comply with a rule, requirement, or guideline adopted under Section 391.009, Local Government Code, the governor may, until the failure is corrected:

withhold any appropriated funds of the regional planning commission; or
appoint a receiver to operate or oversee the regional planning commission.

Section 5.89 Lobbying

An employee of a regional planning commission when using state-appropriated funds, including federal funds, is subject to the same rules regarding lobbying and other advocacy activities contained in Chapter 556, Government Code, as an employee of any state agency.

Section5.90 Annual Work Program

Each regional planning commission shall annually prepare a work program which encompasses the commission’s major programs and activities for the next fiscal year. The work program may be a separate planning document, or may be included as a part of another document, such as the annual budget and work program, comprehensive economic development strategy and work program, annual operational plan or other, similar document.

The work program must delineate goals, objectives and performance measures in sufficient detail to provide a basis for projecting performance and productivity for the next fiscal year and for evaluating whether or to what degree goals and objectives were met in the previous fiscal year.
The work program must be submitted to the director of the Office of the Governor’s Budget and Planning Division within 90 days following the close of the regional planning commission’s previous fiscal year. Submission of the work program with the elements required in Section 5.90 (1) constitutes compliance with the requirements of productivity and performance reporting required by Section 5.87 (a) (1) and (2) of these rules.