Untitled Texas Attorney General Opinion ( 1987 )

Honorable Isaac M. Castro Opinion NO. J?i-828
Stonewall County Attorney
P. O.Box 396 Re: Whether common-law in-
Aspermont, Texas 79502 compatibility prohibits a
particular individual from
serving on the board of
directors of a hospital
district (RQ-1116)
Dear Mr. Castro:
You seek an Attorney General Opinion answering the
following question:
May a person serve as a member of the
P board of directors of a public hospital
district and be simultaneously employed by a
physician who receives part of his income
from the hospital district?
Your question concerns the Board of Directors for the
Stonewall Memorial Hospital District which oversees the
operation of the hospital and a clinic. YOU state that a
newly elected board member is employed in the clinic as
a bookkeeper and receptionist by the sole physician
practicing in the district's facilities. She has been
employed in that capacity for approximately ten years by
the various physicians who have contracted with the
district to practice medicine in the clinic and hospital.
The contract between the district and the physician
guarantees him a net income of $8,000 per month. The
board member's salary as bookkeeper is paid by the
physician but is considered an expense for purposes of
determining his actual net income. If his actual net
income is less than $8,000 the hospital district must pay
him the balance. Each month, the board of directors votes
to approve his expenses, including the board member's
salary as receptionist and bookkeeper. YOU suggest that
the common-law doctrine of incompatibility prevents this
individual from serving in both positions.
p. 3962
Honorable Isaac M.Castro - Page 2 (34-828)
The common-law doctrine of incompatibility prevents
one person from holding two offices if the duties are
inconsistent or in conflict, or if one office is sub-
ordinate to the other. Thomas v. Abernathv Countv Line
Indevendent School District, 290 S.W. 152 (Tex. Comm'n
APP. 1927, judgm't adopted). In Thomas v. Abernathy
Countv Line Indenendent School District, the court held
that a city alderman could not also serve as trustee of a
school district, where the incorporated town was within
the boundaries of the school district. The court found
the two offices to be incompatible because both the board
of aldermen and the board of trustees had directory and
supervisory powers over school property located within the
city limits. There might arise a conflict between the two
officers about the appropriate health, sanitation, and
fire prevention standards to apply to school property.
But see State v. Martin, 51 S.W.2d 815 (Tex. Civ. APP. -
San Antonio 1932, no writ) (school trustee may serve as
city tax collector because the duties of office are
unrelated and neither officer is accountable to the
other).
The incompatibility rule also bars a public employee
from holding a public office which appoints, supervises
and controls his employment. See Ehlinaer v. Clark, 8
S.W.2d 666 (Tex. 1928); Attorney General Opinion JM-203
(1984): Attorney General Letter Advisory No. 114 (1975).
Whether two offices are incompatible may be determined by
comparing their powers and duties, in some cases in the
context of the geographical jurisdiction of each.
Incompatibility between an office and an employment
depends primarily on the employee's subordination or
accountability to the officer.
The Stonewall County District was established pur-
suant to an uncodified special law adopted in 1963. H.B.
No. 295, Acts 1963, 58th Leg., ch. 54, at 89; M V.T.C.S.
a*. 4494q (list of hospital districts created by special
act). The 1963 law was adopted pursuant to the legis-
lature's constitutional authority to create hospital
districts composed of one or more counties. Comnare Tex.
Const. art. IX, 59 (authorizing legislature to create
county hospital districts) with Tex. Const. art. III, 556
(limitation on enactment of local and special laws except
as otherwise provided in constitution). House Bill No.
295 provides that the management and control of the
hospital district is vested in the board of directors and
p. 3963
Honorable Isaac M.Castro - Page 3 (JM-828)
grants the board other powers of office. See U.S. No. 295,
§53-7, suvra. The board
shall have the power to prescribe the method
and manner of making purchases and expendi-
tures by and for such Hospital District, and
also shall prescribe all accounting and
control procedures; the method of purchasing
necessary supplies, materials and equipment;
and shall have the power to adopt a seal
for such District: and mav emdov a aeneral
manaaer. attorney. bookkeener. architect,
and anv other emdovees deemed necessary for
the efficient overation of the HOSDital
District. (Emphasis added.)
Acts 1963, 58th Leg., ch. 54, !i7, at 92-93. Thus, the
authority to hire employees of the hospital district is
vested in the board of directors, even though the board
has apparently allowed the physician with whom it
contracts to employ the bookkeeper-receptionist, or has at
least considered her to be his employee. The board holds
ultimate authority over the employment of the
P bookkeeper-receptionist and exercises supervision and
control by approving her salary as part of the physician's
expenses.
In our opinion, the office of director of the Stone-
wall Memorial Hospital District is incompatible with the
employment as bookkeeper-receptionist in the district's
clinic. The board has ultimate authority over the board
member’s employment in the clinic. The boardts contract
with the physician will eventually be subject to renewal
and may become a subject of controversy between the
physician and the board. The board may have to make
decisions which would affect the operation of the clinic
where the board member works. The employee is presently
accountable to the board on which she serves for her
salary. Thus, the board's power to manage the district's
facilities and to employ its personnel creates a con-
siderable area of conflict between the office of director
and the employment as bookkeeper and receptionist in the
clinic. The relationship of supervisor and subordinate
which exists between the board of directors of the
-. hospital district and the bookkeeper-receptionist of the
clinic renders the two positions incompatible. Upon
election to the board, the individual should have
relinquished the incompatible employment. &g Letter
Advisory No. 114 (1975).
p. 3964
Honorable Isaac M.Castro - Page 4 (JM-828)
SUMMARY
The common-law doctrine of incompati-
bility bars one person from serving as a
member of the board of directors of the
Stonewall Memorial Hospital District and
at the same time being employed in the
district's clinic by the doctor under
contract with the district.
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKIXY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 3965