Untitled Texas Attorney General Opinion ( 2007 )

GENERALOF TEXAS
ATTORNEY
GREG ABBOTT
April 12,2007
The Honorable Mike Jackson Opinion No. GA-0536
Chair, Committee on Nominations
Texas State Senate Re: Eligibility of an Assistant Chief of Police
Post Office Box 12068 of the City of League City to serve as City
Austin, Texas 787 11-2068 Administrator (RQ-0539-GA)
Dear Senator Jackson:
You ask several questions about the eligibility of the Assistant Chief of Police of the City of
League City (the "City") to serve as City Administrator.'
The City is a home-rule city that is governed by an elected city council composed of a mayor
and seven council members. See THE CITYOF LEAGUECITY,TEX., at http://www.ci.league-
city.tx.us/ (last visited Mar. 28,2007). The City Administrator is appointed by the Mayor, subject
to confirmation by the City Council. Id. A brief filed on behalf of the City indicates that the
Assistant Chief of Police is serving a temporary appointment as City Admini~trator.~ On September
22,2006, the Assistant Chief of Police filed with the Chief of Police a written request for a leave of
absence, with pay, from his position as Assistant Chief of Police, with the "understanding that when
the permanent position of City Administrator is filled [he would] be able to return to the police
department as the Assistant Chief."3 The Chief of Police approved this request on the same day. See
Reed Memo, supra note 3. The Assistant Chief of Police assumed his duties as interim City
Administrator on October 1, 2006.4
'See Letter from Honorable Mike Jackson, Chair, Senate Committee on Nominations, to Honorable Greg
Abbott, Attorney General of Texas, at 1 (Oct. 1, 2006) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
'Brief from Arnold G. Polanco, Ross, Banks, May, Cron & Cavin, P.C., on behalf of the City of League City,
to Honorable Greg Abbott, Attorney General of Texas, at 3 (Nov. 1, 2006) (on file with the Opinion Committee)
[hereinafter Polanco Brief].
3Memo from Chris Reed, Assistant Chief, to Andrew J. Daniel, Chief of Police (Sept. 22,2006) (on file with
the Opinion Committee) (attached to Polanco Brief, supra note 2) [hereinafter Reed Memo].
4Brief from Onzelo Markum 111, Accreditation Officer, League City Police Department, to Honorable Greg
Abbott, Attorney General of Texas, at 2 (Nov. 20, 2006) (on file with the Opinion Committee).
The Honorable Mike Jackson - Page 2 (GA-0536)
You ask three questions, which we will answer in turn:
1. Can the Assistant Chief of Police of League City abandon his
Civil Service Position and accept another position within the same
governmental body while continuing to maintain his Civil Service
status?
2. Can the Assistant Chief of Police take a leave of absence to serve
as a City Administrator or does this amount to a resignation or
absence without leave and prevent him from being reinstated to his
position after serving as City Administrator?
3. Can the Assistant Chief of Police serve at the same time as City
Administrator or is this a conflict of interest or does it violate the
Constitution or State Statutes?
Request Letter, supra note 1, at 1.
Your first question-regarding the Assistant Chief of Police's abandonment of his civil
service position-assumes that the Assistant Chief of Police occupies a civil service position in the
first instance. Section 143.021(b) of the Local Government Code provides that, "[elxcept for the
department head and a person the department head appoints in accordance with Section 143.014
or 143.102, each fire fighter and police officer is classified as prescribed by this subchapter, and has
civil service protection." TEX.LOC. GOV'TCODEANN. 5 143.02 1(b) (Vernon 1999) (emphasis
added). Section 143.014 provides that "the head of a fire or police department . . . may appoint each
person occupying an authorized position in the classification immediately below that of department
head, as prescribed by this section." Id. 5 143.014(b). The brief filed on behalf of the City indicates
that the Assistant Chief of Police was appointed on October 24,2002, in accordance with section
143.014. See Polanco Brief, supra note 2, at 2. An individual appointed under section 143.014 of
the Local Government Code does not enjoy civil service protection. TEX.LOC.GOV'TCODEANN.
5 143.021(b) (Vernon 1999). Thus, the Assistant Chief of Police could not have abandoned his civil
service position because, as Assistant Chief of Police, he did not occupy a civil service position.
Your second question asks whether the Assistant Chief of Police's leave of absence is
tantamount to a resignation or absence without leave so as to preclude his future reinstatement as
Assistant Chief of Police. Request Letter, supra note 1, at 1. As we have noted, the Assistant Chief
of Police sought and received a leave of absence from the Chief of Police. See Polanco Brief, supra
note 2, at 3; see also Reed Memo, supra note 3. Because, as we have determined, the position of
Assistant Chief of Police is not a civil service position, a leave of absence therefrom is governed by
the personnel policies of the City. "In this regard, all classified Civil Service personnel in the Police
Department are regulated by the League City Civil Service Commission; where these rules are silent,
the City of League City Personnel Policies apply." See Polanco Brief, supra note 2, at 2-3 (citing
section 101.3 of the League City Personnel Policies). Section 108.11 of the Personnel Policies
governs absence without leave and provides that such absence "constitutes abandonment of duties
The Honorable Mike Jackson - Page 3 (GA-0536)
which may result in dismissal at the end of the third consecutive working day of absence without
leave." Id. at 3. Because the Assistant Chief of Police asked for and received a leave of absence
from the Chief of Police, he did not abandon his duties and is not thereby subject to dismissal.
You finally ask whether the Assistant Chief of Police may simultaneously serve as City
Administrator. Request Letter, supra note 1, at 1. Both the Texas Constitution and the common-law
doctrine of incompatibility place restrictions on dual office holding. We will address both sources
of law.
The Texas Constitutionprohibits a single individual from simultaneously holding "more than
one civil office of emolument." TEX.CONST.art. XVI, 5 40(a). It is well established that "the
determining factor which distinguishes a public officer from an employee is whether any sovereign
function of the government is conferred upon the individual to be exercised by him for the benefit
of the public largely independent of the control of others." Aldine Indep. Sch. Dist. v. Standley, 280
S.W.2d 580, 578 (Tex. 1955). As we have indicated, a person in a non-civil service position
immediately below that of the head of a police department "serves at the pleasure of' the Chief of
Police. See TEX.LOC.GOV'TCODEANN.3 143.014(g) (Vernon 1999). As a result, the Assistant
Chief of Police is not a "public officer" under the Aldine standard. See Tex. Att'y Gen. Op. Nos.
GA-0350 (2005) at 3, GA-0199 (2004) at 2, JM-1266 (1990) at 2. Consequently, the Assistant Chief
of Police does not occupy more than one "office of emolument" in contravention of article XVI,
section 40.
The common-law doctrine of incompatibility has three aspects: (1) self-appointment; (2)
self-employment; and (3) conflicting loyalties. See Tex. Att'y Gen. Op. No. GA-0127 (2003) at 2.
"Self-appointment" is not relevant here, because, under the terms of section 143.014 of the Local
Government Code, it is the Chief of Police, rather than the City Administrator, who appoints the
Assistant Chief of Police. TEX.LOC.GOV'TCODEANN.5 143.014(b) (Vernon 1999). Neither does
the Assistant Chief of Police appoint the City Administrator. "Conflicting loyalties," which derives
from a 1927 judicial decision, does not apply unless both positions are "offices." See Tex. Att'y
Gen. Op. Nos. GA-0195 (2004) at 1-2, GA-0127 (2003) at 3, JC-0054 (1999) at 2, JM-1266 (1990)
at 4. Because, as we have noted, the Assistant Chief of Police in question does not occupy an office,
the "conflicting loyalties" aspect of incompatibility does not bar him from simultaneously serving
in both capacities.
The self-employment prong of the incompatibility doctrine, while it ultimately derives from
a 1928 case, Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928), was not recognized in Texas law
until a 1975 attorney general opinion. That opinion concluded that the "positions of public school
teacher for an independent school district and trustee for the same district are legally incompatible
and cannot be simultaneously occupied by the same person." Tex. Att'y Gen. LA-1 14 (1975) at 8.
Numerous attorney general opinions since 1975 have addressed "self-employment" incompatibility.
See, e.g., Tex. Att'y Gen. Op. No. JC-0371 (2001); Tex. Att'y Gen. LO-97-034, LO-90-045,
LO-89-057, LO-89-038.
The Honorable Mike Jackson - Page 4 (GA-0536)
In Attorney General Opinion JC-037 1, this office concluded that a school district trustee was
barred by "self-employment" incompatibility from serving as a volunteer, unpaid, part-time history
teacher in his district for one period a day for a single semester. See Tex. Att'y Gen. Op. No.
JC-0371 (2001) at 6. The opinion emphasized that the key aspect of self-employment
incompatibility is supervision. See id. at 3. In the situation you pose, the Chief of Police has direct
supervisory authority over the position of Assistant Chief of Police. See Polanco Brief, supra note
2, at 4 (Assistant Chief of Police serves under the direct supervision of the Chief of Police). In
turn, the City Administrator has direct supervisory authority over the Chief of Police. Telephone
Conversation with Joy Almond, Human Resources Director, City of League City, Texas (Mar. 28,
2007); see also CITYOF LEAGUECITY,TEX.,at http://www.ci.league-city.tx.us/ (last visited Mar.
28,2007) ("The City Administrator is the head of the administrative department of the City and shall
have supervision of all administrative officers and employees."). Thus, the City Administrator has
ultimate supervisory authority over the position of Assistant Chief of Police.
"A leave of absence is not a complete separation from employment . . . ." Chenault v. Otis
Eng'g Corp., 423 S.W.2d 377, 383 (Tex. Civ. App.-Corpus Christi 1967, writ refd n.r.e.).
Moreover, the grant of a leave of absence approved by the Chief of Police on September 22,2006,
is an approval for apaid leave of absence, as indicated by the request from the Assistant Chief of
Police. See Reed Memo, supra note 3. Because the Assistant Chief of Police on approved leave
remains subject to the City Administrator's supervision, particularly the compensation and other
terms of his leave of absence, the Assistant Chief of Police is barred by the common-law doctrine
of incompatibility from accepting the office of interim City Administrator while retaining his
position as Assistant Chief of Police under a leave of absence.
The Honorable Mike Jackson - Page 5 (GA-0536)
S U M M A R Y
The present City Administrator of the City of League City is
on approved leave of absence, with pay, as Assistant Chief of Police
of that city. Because the City's Assistant Chief of Police is not a civil
service position, such leave of absence was not an abandonment of
a civil service position. Also, because the leave of absence was
approved in accordance with the relevant personnel policies, he did
not abandon his duties as Assistant Chief of Police.
However, because the City Administrator has supervisory
authority over the Assistant Chief of Police and a leave of absence
does not sever an employment relationship, the Assistant Chief of
Police is barred by the self-employment aspect of the common-law
doctrine of incompatibility from simultaneously serving as City
Administrator.
Very truly yours,
/ G R E ~ A B B O T T
Attorney General of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee