Untitled Texas Attorney General Opinion ( 2000 )

OFFICE
OFTHEATTORNEY
GENERAL.
STATEOFTEXAS
JOHN CORNYN
March 21.2000
The Honorable Tim Cone Opinion No. JC-0199
Criminal District Attorney
Upshur County Justice Center Re: Whether a member of the Gilmer Volunteer
405 North Titus Street Fire Department may simultaneously serve on a
Gilmer, Texas 75644 city council (RQ-0131-JC)
Dear Mr. Cone:
You have requested our opinion as to whether a member of the city council of the City of
Gilmer (the “city”) may simultaneously serve as amember ofthe Gihner Volunteer Fire Department
(the “department”). For the reasons set forth below, we conclude that he may not do so.
A volunteer tire tighter does not hold an “office” under article XVI, section 40 of the Texas
Constitution. Tex. Att’y Gen. LO-94-046, at 2-3; LO-88-085, at 1. Thus, the question before us is
whether the common-law doctrine of incompatibility prohibits an individual from simultaneously
holding the positions of city council member and volunteer fire fighter. The three aspects of
incompatibility are self-appointment, self-employment, and conflicting loyalties, any one of which
is sufficient to bar an individual from serving in two positions at the same time. See Tex. Att’y Gen.
Op. No. JM-1266 (1990). Self-appointment is not applicable because, according to the city charter,
the fire chief, with the approval of the city manager, appoints the members of the volunteer fire
department. Neither does the conflicting loyalties aspect apply in this case, since the position of
volunteer tire fighter is not an “office.” See id.; see also Tex. Att’y Gen. LO-96-148, at 2; LO-95-
052; LO-95-029, at 3; LO-93-027, at 2.
The situation you present may, however, implicate self-employment incompatibility, which
bars an individual from holding two positions, one of which is answerable, immediately or
ultimately, to the other. This doctrine was first recognized in Texas in 1977. In Letter Advisory No.
114 (1977), this office concluded that a public school teacher was not eligible to serve on the board
of trustees of the district in which she was employed as a teacher. Tex. Att’y Gen. LA-1 14 (1977).
See also Tex. Att’y Gen. Op. Nos. DM-156 (1992); DM-55 (1991); JM-203 (1984). In Attorney
General Letter Opinion 94-070, however, this office, in concluding that a member of the City
Council of the City of Hudson was not precluded from simultaneously serving as a member of the
Hudson Volunteer Fire Department, declined to apply self-employment incompatibility to a situation
involving a volunteer fire fighter. In that instance, the opinion noted, the City of Hudson did not
The Honorable Tim Cone - Page 2 (X-0199)
control the tire department or determine the duties of the volunteer fire fighters. Tex. Att’y Gen.
LO-94-070, at 2.
Unlike the circumstances in Letter Opinion 94-070, the city charter of Gilmer creates a “Fire
Department for the City of Gilmer, to be maintained by the Gilmer Volunteer Fire Department for
the protection of the City.” GILMER CITY CHARTER art. 4, 5s 4.05, 4.05.1 (1997). A fire chief,
elected by the members of the department, must be “approved or denied by the City Council.” Id.
The fire chief is the chief administrative officer of the department and is fully responsible to the
council for its administration and for enforcing the resolutions and ordinances of the city council.
Id. The chief, with the approval of the city manager, appoints and removes the “employees” of the
department. Id. (emphasis added). Whereas the Hudson Volunteer Fire Department appears to have
been a truly independent organization, the department in Gilmer is clearly under the control of the
city, is housed on city property, and is led by a chief who must be approved by the city council.
It might be argued that a volunteer fire fighter, as in Letter Opinion 94-070, is a mere
“volunteer,” and hence not subject to self-employment incompatibility. In Attorney General Letter
Opinion 98-036, this office said that a member of a university board of regents was permitted to
serve simultaneously as a volunteer coach for the football team. Tex. Att’y Gen. LO-98-036. Thus,
there might appear to be an conflict between the city charter’s characterization of the Gilmer fire
fighters as “employees” and their status as “volunteers.” But the fire fighters of Gilmer are not truly
“unpaid.” Each ofthem is compensated at the rate of $4.00 per tire and $4.00 per drill, and receives
an annual contribution from the city to the Fire Fighters Relief and Retirement Fund. See Letter
from Michael D. Martin, Gilmer City Attorney, to Honorable Tim Cone, Upshur County Criminal
District Attorney, at 2 (May 14,1999) (on file with Opinion Committee). Even such token payments
have been held to constitute an “emolument” for purposes of article XVI, section 40 of the Texas
Constitution. See Willis Y. Potts, 377 S.W.2d 622 (Tex. 1964); Tex. Att’y Gen. Op. Nos. JM-704
(1987); JM-594 (1986); Tex. Att’y Gen. LO-97-100; LO-93-033. Likewise, we think that such
payments support the charter’s description of volunteer tire fighters as “employees.”
You also ask whether the city council member in question, by taking the oath for that office,
automatically resigned his position with the volunteer fire department. Ordinarily, qualification for
and acceptance of a second office operates as an ipso facto resignation from the first office. This
office has said, however, that automatic relinquishment does not apply when one of the positions is
a mere employment. Tex. Att’y Gen. LO-89-057. In the present instance, the Gilmer City Charter,
rather than any resign-to-run provision, furnishes the answer. It provides: “If a member of the
Council, amember ofany Board or Commission appointed by the Council, or any appointive officer
or employee of the City is elected or appointed to any publicly elected office, other than re-election
to the same position on the City Council, they shall immediately forfeit their place, position, or
employment with the City. ." GILMER CITY CHARTER art. 3, $ 3.02 (1997). Thus, under the
terms of the Gilmer City Charter, if a volunteer tire fighter, as an “employee” of the city, is elected
to the city council, he ipso facto resigns his position with the volunteer fire department.
The Honorable Tim Cone - Page 3 (JC-0199)
SUMMARY
Under the terms of the charter of the City of Gilmer, a
member of the Gilmer Volunteer Fire Department is barred by
common-law incompatibility from simultaneously serving as a
member of the city council. Election to the Gilmer City Council
operates as ipsofacto resignation from the volunteer fire department.
CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee