Untitled Texas Attorney General Opinion ( 1990 )

THE ATTORNEP GENER.&L
OF TEXAS
Honorable Charles S. Brack Opinion No. JM-1266
Chambers County Attorney
P. 0. Box 1200 Re: Whether a city council
Anahuac, Texas 77514 member may simultaneously serve
as a county special district
or school district employee, or
as a director of a navigation
district (RQ-2145)
Dear Mr. Brack:
You have requested our opinion regarding six possible
instances of dual office holding. We will briefly describe
each example before addressing the subject in general terms.
1. A city council member who receives a $40
per month expense allowance and who is also a
county sanitation and safety officer, a
salaried position appointed by the commission-
ers court.
2. A city council member who receives a $40
per month expense allowance and who is also a
salaried employee of a conservation and
reclamation district.
3. A city council member who receives a $40
per month expense allowance and who is also a
salaried teacher employed by a school dis-
trict.
4. A mayor who receives an $80 per month
expense allowance and who is also a salaried
employee of a school district.
5. A city council member who receives a $40
per month expense allowance and who also holds
a per diem compensated appointment as director
of a navigation district.
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Honorable Charles S. Brack - Page 2 (JM-1266)
6. A city council member who receives a $40
per month expense allowance and who is also a
salaried employee of a hospital district.
Article XVI, section 40, of the Texas Constitution
furnishes the primary constitutional impediment to dual
office holding. With various exceptions, it provides that
"no person shall hold or exercise at the same time more
than one civil office of emolument.V* The Supreme Court
has repeatedly held that the determining factor in dis-
tinguishing an officer from an employee is whether the
individual in question exercises a "sovereign function of
the sovernment . . . largely independent of the control of
others." Aldine Indeo. School Dist. v. Standlev 280 S.W.2d
578, 583 (Tex. 1955), ouotina Dunbar v. Brazoria'Countv, 224
S.W.Zd 738. 740 ITex. Civ. ADD. - Galveston 1949, writ
ref'd). Eiected officials are ‘ciearly officers, and 'there-
fore the mayor and city council members under consideration
here are officers for purposes of article XVI, section 40.
As to the other positions of which you inquire, it is
useful to consider Attorney General Opinion 3X-499 (1986),
where we held that the chief appraiser of an appraisal
district is an employee rather than an officer: The opinion
turned on the consideration that the chief appraiser exer-
cised his responsibilities subject to review and correction
by the appraisal review board, and served at their pleasure.
In our opinion, if an individual may be terminated at will
by a superior body, he can hardly be said to exercise power
"largely independent of the control of others," since the
superior body is in a position to dictate his every act.
Based on these criteria, we may conclude that since each of
the positions in examples 1, 2, and 6 is subject to control
by a superior body, those positions are employments rather
than offices. Thus, article XVI, section 40, does not bar a
city council member from holding simultaneous positions as a
county sanitation and safety officer, an employee of a
conservation and reclamation district, or an employee of a
hospital district.
With regard to your third and fourth examples, a
further inquiry is necessary. Article XVI, section 40, also
establishes an additional restriction for certain employees
who serve on the governing bodies of a city or other local
governmental districts. It provides in pertinent part:
State employees or other individuals who
receive all or part of their compensation
either directly or indirectly from funds of
the State of Texas and who are not State
officers, shall not be barred from serving as
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Honorable Charles S. Brack - Page 3 (JM-1266)
members of the governing bodies of school
districts, cities, towns, or other local
governmental districts: provided, however,
that such State employees or other individuals
shall receive no salary for serving as members
of such governing bodies.
Tex. Const. art. XVI, 5 40. Teachers and other employees of
school districts receive a portion of their compensation
from funds of the state of Texas. As a result, they may
serve as city council members or as mayor only if they
receive no salary for such service. Attorney General
Opinion JM-118 (1983): MW-230 (1980). We must therefore
determine whether the $40 or $80 per month "expense allow-
ance" constitutes a salary. If it constitutes a salary, the
school teacher must renounce it in order to serve on the
city council. Letter Advisory No. 20 (1973).
For purposes of the quoted provision of article XVI,
section 40, **salary*1does not include legitimate reimburse-
ment of expenses. - See aenerallv Whitehead v. Julian, 476
S.W.2d 844 /Tex. 1972) Iemense allowance does not make
office a "lucrative office";-salary, fees, or other compen-
sation must be paid): Willis v. Potts, 377 S.W.Zd 622 (Tex.
1964) (token payment of $10 per meeting makes city council
member's office a "lucrative office"); Attorney General
Opinion MW-450 (1982); MW-230. In the examples you cite, we
do not believe that the school teacher or other salaried
employee of the school district may receive compensation for
serving as mayor or city council member merely by denominat-
ing a $40 or $80 monthly payment an "expense allowance"
rather than a ltsalary.*' At the very least, the official
should submit an affidavit that the actual expenses he
incurs each month equal or exceed the allowance payment.
The better practice would be for the official to itemize his
expenses each month in order to demonstrate that the allow-
ance does not exceed expenses incurred. See Attorney
General Opinion H-992 (1977).
As to your fifth example, a director of a navigation
district holds an office, and since, by your description, he
receives a per diem compensation for such service, he may
avoid the prohibition of article XVI, section 40, only if
his city council position is not one of emolument. The same
test applied to the school district employees in your third
and fourth examples is applicable here: if the "expense
allowance" can be fairly demonstrated to constitute reim-
bursement for actual expenses, the constitutional provision
does not bar the city council member from also serving as
director of a navigation district.
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Honorable Charles S. Brack - Page 4 (JM-1266)
We must also consider the common law doctrine of
incompatibility as applied to the positions of which you
inquire. That doctrine prohibits one individual from
occupying "two offices where one office might thereby impose
its policies on the other or subject it to control in some
other way." Attorney General Opinion JM-129 (1984); see
&&lg Attorney General Opinion JM-133 (1984). The aspect of
the doctrine relevant here, sometimes called the "con-
flicting loyalties" type of incompatibility to distinguish
it from the "self-employment I0type, see Letter Advisory No.
114 (1975), has never been held to apply to a situation in
which one position is an office and the other an emDlovment.
Indeed, the original Texas case involving incompatibility,
Thomas v. Abernathv Countv Line IndeD. School Dist., 290
S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted), involved
the gffices of city alderman and school trustee. On other
occasions, we have held incompatible the offices of communi-
ty college trustee and county commissioner, Attorney General
.~.--Opinion JM-129-;;'and the offices of county auditor and city~
council member. Attorney General Opinion JM-133; see also
Letter Advisory No. 149 (1977).
Applying these principles to your six examples, we
believe it is clear that incompatibility has no application
to numbers l-4 or to number 6, since in each instance one of
the positions is a mere employment. As to the fifth exam-
ple, it is equally apparent that both positions are offices.
If the geographical boundaries of the navigation district
overlap with those of the city of which the individual is a
council member, there is at least a potential for conflict-
ing loyalties. We cannot say as a matter of law, however,
that these positions are incompatible. If, for example, the
two political subdivisions contract with each other, there
probably exists sufficient potential for conflicting loyal-
ties as to render the two positions incompatible. Again, if
the navigation district has and exercises taxing authority,
the potential for conflict is probably insurmountable. We
conclude that the common law doctrine of incompatibility
may, but does not as a matter of law, prohibit a single
individual from serving both as a member of a board of
directors of a navigation district and as a city council
member of a municipality where the territory of the district
and municipality overlap.
SUMMARY
Neither article XVI, section 40, of the
Texas Constitution nor the common law doc-
trine of incompatibility bars a city council
member from simultaneously serving as a
county sanitation and safety officer, an
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Honorable Charles S. Brack - Page 5 (JM-1266)
employee of a conservation and reclamation
district, or an employee of a hospital
district. A mayor or city council member iS
not barred by incompatibility from simul-
taneously serving as an employee of an
independent school district, but he must
renounce any salary or compensation for
serving as mayor or city council member. A
city council member is barred by article XVI,
section 40, from serving as a director of a
navigation district unless the allowance
received for serving as council member can be
demonstrated to constitute reimbursement for
expenses only. Common-law incompatibility
may, depending on the circumstances, bar one
individual from serving both as city council
member and as director of a navigation dis-
trict, but it does not do so as a matter of
law.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
P. 6767