Judges: DAN MORALES, Attorney General of Texas
Filed Date: 10/25/1993
Status: Precedential
Modified Date: 7/6/2016
Honorable Libby Linebarger Chair Public Education Committee Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910
Re: Whether conflicts of interest exist that would disqualify a spouse from serving in elected office when both spouses hold elected positions in local governmental bodies with overlapping jurisdictional boundaries and one jurisdiction is responsible for a portion of the annual budget of the other governmental body, and related questions (RQ-566)
Dear Representative Linebarger:
Your request for an opinion involves a married couple's possible conflicts of interest when each spouse holds elected office in a local governmental body whose jurisdictional boundary overlaps with that of the other body and one governmental body is responsible for a portion of the annual budget of the other body. You explain that one spouse is an elected director of a state conservation district ("CD") operating under its enabling legislation and chapters 50 and 52 of the Water Code. The C.D. derives its revenues from "user fees" based on pumpage from wells in the CD. About 40 percent of the user fee revenues come from wells that are located in a certain city ("the city") whose jurisdiction partially overlaps that of the CD. The directors of the C.D. do not receive a salary, but they are entitled to a per diem for meeting attendance, which per diem this spouse always has declined. The other spouse is a member of the city council of the city and receives an annual salary as a council member. You ask whether, under the foregoing facts, either spouse would be disqualified from office because of a conflict of interest. Each spouse is a "[l]ocal public official," that is, "a member of the governing body . . . of any district . . ., municipality, . . . or other local governmental entity," Local Gov't Code §
file [with the official record keeper of the governmental entity], before a vote or decision on any matter involving the business entity or the real property, an affidavit stating the nature and extent of the interest and . . . abstain from further participation in the matter.
Id. § 171.004(a)(1)-(2), (b). Chapter 171 provides for disclosure and abstention but does not disqualify local public officials from office.
Your facts do not suggest that any real property interest is involved here, but you do mention that one spouse receives a salary as a city council member and that the other has declined the per diem for meetings of the CD. These facts suggest that we consider whether either spouse has a substantial interest in a business entity for purposes of chapter 171. In that chapter a "`[b]usiness entity' means a sole proprietorship, partnership, firm, corporation, holding company, joint-stock company, receivership, trust, or any other entity recognized by law." Id. § 171.001(2). "[A] person has a substantial interest in a business entity if: . . . funds received by the person from the business entity exceed 10 percent of the person's gross income for the previous year." Id. § 171.002(a)(2). Therefore, the city council member spouse has a substantial interest in a business entity if the city is a business entity and if the money received from the city exceeds 10 percent of that spouse's income last year. Further, if the city council member has a substantial interest in a business entity by virtue of the salary from the city, then the other spouse also has a substantial interest in a business entity because of that person's marital relationship to the council member. See id. § 171.002(c) (local public official has substantial interest if person related to that official in first degree of consanguinity or affinity has substantial interest).
There is no precedent on whether a city is a business entity for purposes of chapter 171. In Attorney General Opinion
You ask whether the spouse that is a director of the C.D. may accept the per diem. We see no reason under the facts you have given that the director spouse should not accept the per diem.
You also ask what restrictions apply if the spouse who is a director of the C.D. also is an employee of a conservation and reclamation district. Your question raises the issue of dual office holding. Article
Another potential bar to dual office holding is the common-law doctrine of incompatibility. See State ex rel. Brennan v. Martin,
Finally, you ask what possible conflicts of interest there are regarding voting on issues germane to either governmental body by either official. We can answer this question only by referring you generally to chapter 171 of the Local Government Code and the case law and attorney general opinions construing it. We invite you to submit a new request if you have a particular issue you wish us to consider in this regard.
Very truly yours,
DAN MORALES Attorney General of Texas
WILL PRYOR First Assistant Attorney General
MARY KELLER Deputy Attorney General for Litigation
RENEA HICKS State Solicitor
MADELEINE B. JOHNSON Chair, Opinion Committee
Prepared by James B. Pinson Assistant Attorney General