Untitled Texas Attorney General Opinion ( 2014 )

GREG
0
ATTORNEY GENERAL OF TEXAS
ABBOTT
October 7, 2014
The Honorable Lisa L. Peterson Opinion No. GA-1083
Nolan County Attorney
100 East 3rd Street, Suite 106A Re: Whether concurrent service as a juvenile
Sweetwater, Texas 79556 probation officer and a trustee on an
independent school district's board of trustees
creates a conflict of interest (RQ-1195-GA)
Dear Ms. Peterson:
You ask about the service of a juvenile probation officer who also serves as the presiding
member of an independent school district board of trustees. 1 You ask:
1) Given the funding provision of the enabling statute, does
concurrent employment with the Fisher, Mitchell and Nolan
Counties Juvenile Department and service on the Sweetwater
Independent School District Board of Trustees constitute a conflict
of interest?
2) If service as a member of the Board of Trustees does not create
such a conflict, does serving as the presiding officer of the Board
constitute a conflict?
Request Letter at 1-2.
You tell us the Juvenile Department ("Department") comprises Fisher, Mitchell, and
Nolan counties. See id.; TEX. HuM. REs. CoDE ANN. §§ 152.0821 (West 2013) (Fisher County),
152.1741 (Mitchell County), 152.1831 (Nolan County). You inform us that the individual is
employed by the Department as a probation officer. See Request Letter at 1. You also tell us that
1
See Letter from Honorable Lisa L. Peterson, Nolan Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y
Gen. at I (Apr. 3, 2014), https://www.texasattomeygeneral.gov/opin ("Request Letter").
The Honorable Lisa L. Peterson - Page 2 (GA-1083)
the individual serves as the presiding member of the board of trustees of the Sweetwater
Independent School District ("District"), which is located in Nolan County. See id
Your questions are prompted by two potential situations in which the positions may
interact. See id at 2-3. First, you note that the District, as one of the constituent governinental
bodies of the Department, partially funds the Department's operations. See id at 2; see also TEX.
HUM. REs. CODE ANN. § 152.1831(d), (g) (West 2013). You are concerned that the District's
preparation of its budget places the juvenile probation officer in a position to participate in the
District's decisions to fund the Department. See Request Letter at 3. You also raise the
possibility of the interaction between the juvenile probation officer and a juvenile case manager
appointed by the District. Id at 2. Those two positions have potentially overlapping duties that
may necessitate the need for a meeting between the Department and the District, which may be
called only by the presiding member of the District's board. See TEX. EDUC. CODE ANN.
§ 37.013 (West 2012); see also TEX. CODE CRIM. PROC. ANN. art. 45.056(a)(2) (West Supp.
2013). You are concerned about a situation in which an employee of the Department requires her
supervisors to meet with a governmental body she chairs. See Request Letter at 2. Mindful of
these possible situations, we turn to your questions?
We first consider article XVI, section 40 of the Texas Constitution, which provides that
"[n]o person shall hold or exercise at the same time, more than one civil office of emolument."
TEX. CONST. art. XVI, § 40. A "civil office" for purposes of this provision is a "public office."
Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.). The
position of school district trustee is a public office, but as it is an uncompensated position, it is
not one "of emolument." Tex. Att'y Gen. Op. No. GA-0738 (2009) at 2; see also TEX. EDUC.
CODE ANN.§ 11.061(d) (West 2012) ("The trustees serve without compensation."); State ex ret.
Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) ("An 'emolument' is a pecuniary
profit, gain, or advantage."). Article XVI, section 40 does not bar the dual service here.
Absent a constitutional prohibition, we next consider the common-law doctrine of
incompatibility. There are three aspects: (1) self-appointment, (2) self-employment, and (3)
conflicting loyalties. See Tex. Att'y Gen. Op. No. GA-0826 (2010) at 2. The last of the three,
conflicting-loyalties incompatibility, requires that both positions be public offices. Tex. Att'y
Gen. Op. No. GA-0766 (2010) at 2. The Texas Supreme Court has said 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 578, 583 (Tex. 1955). A Texas court of appeals has determined that a chief juvenile
2
In your request letter, you refer to the separation-of-powers provision in the Texas Constitution. See
Request Letter at 2; see also TEX. CONST. art. II, § l. In the past, this office considered the provision as a
prohibition against dual office holding, but we "have long since abandoned the use of the doctrine as a bar to dual
office holding." Tex. Att'y Gen. Op. No. GA-0348 (2005) at 2.
The Honorable Lisa L. Peterson - Page 3 (GA-1083)
probation officer has some authority to perform some sovereign functions of government but
does not perform them largely independent of the control of the juvenile board and is not an
officer. See Harris Cnty. v. Schoenbacher, 594 S.W.2d 106, 111 (Tex. Civ. App.-Houston [1st
Dist.] 1979, writ ref'd n.r.e.). Subordinate to the chief juvenile probation officer, a juvenile
probation officer certainly cannot be said to exercise duties, sovereign or otherwise, independent
of the control of others. See TEx. HUM. REs. CODE ANN.§ 152.0008(b) (West 2013). Ajuvenile
probation officer is not a public officer under article XVI, section 40. As a result, conflicting-
loyalties incompatibility does not bar the dual service in question.
Self-appointment incompatibility derives from the Texas Supreme Court's decision in
Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928). In Ehlinger, the court recognized the
incompatibility of a person being both a member of a body making an appointment and an
appointee of that body. Id (ruling that county judge could not be employed as attorney by the
commissioners court over which the judge presided). The presiding member of the District's
board of trustees has no power of appointment over the personnel of the Department. See TEX.
HUM. REs. CODE ANN. § 152.0008(a) (West 2013). That power belongs to the chief juvenile
probation officer and the Department's board. See id.; see also id. § 142.002(a). Thus, self-
appointment incompatibility also does not bar the dual service in question.
Remaining is self-employment incompatibility, which prohibits an individual "from
holding both an office and an employment thatthe office supervises." Tex. Att'y Gen. Op. No.
GA-0826 (2010) at 2. It is applicable when the officer has a direct supervisory role over his or
her own employment or when the relationship between the two positions gives rise to a "great
risk that one would impose its policies on the other." Tex. Att'y Gen. Op. No. GA-0348 (2005)
at 3. The officer's supervision of the employee is key. See Tex. Att'y Gen. Op. No. GA-0536
(2007) at 4. The presiding member of the District's board of trustees does not directly supervise
the juvenile probation officer. The District's partial funding of the Department does not
authorize the District (including its presiding member) to supervise employees of the
Department. Similarly, section 37.013 of the Education Code, which authorizes a meeting held
between the District and the Department's board, is not a basis for the District or its presiding
member to control, supervise or impose policies on the employees of the Department. TEX.
EDUC. CoDE ANN. § 37.013 (West 2012). Accordingly, the dual service you describe is not
prohibited by self-employment incompatibility.
Finally, conflicts of interest at the local government level are governed by chapter 171 of
the Local Government Code, which provides that "[i]f a local public official has a substantial
interest in a business entity," the official must declare the interest in an affidavit filed with the
governmental body and abstain from further participation in the matter. TEx. Loc. Gov'T CODE
ANN. § 171.004(a) (West 2008). The presiding officer of a school district board of trustees falls
within the definition of"local public official" for purposes of chapter 171. See id. § 171.001(1).
The definition of a "substantial interest" includes "funds received by the person from the
business entity [that] exceed 10 percent of the person's gross income for the previous year" and
likely includes the juvenile probation officer's salary. !d. § 171.002(2). Yet, a juvenile probation
department is likely not a business entity under chapter 171 because it is a public, not private,
entity. See Tex. Att'y Gen. Op. No. GA-0826 (2010) at 1. Even assuming the Department was a
business entity, as we noted above, chapter 171 requires only that the local public official file an
The Honorable Lisa L. Peterson - Page 4 (GA-l 083)
affidavit with the board and abstain from further participation in the matter. See TEX. Loc.
Gov'T CODE ANN. § 171.004(a) (West 2008). It does not bar concurrent dual service. Tex. Att'y
Gen. Op. No. GA-0015 (2003) at 4-5 (distinguishing incorp.patibility from conflicts of interest
under chapter 171 ). Whether or not chapter 171 applies to the situation you describe, following
its procedures-declaring a conflict of interest and abstaining from participation in related
matters-may be a prudent course for local officials who wish to avoid any appearance of
impropriety.
The Honorable Lisa L. Peterson - Page 5 (GA-1083)
SUMMARY
Concurrent employment with the Fisher, Mitchell, and
Nolan Counties Juvenile Department and service as the presiding
member of the Sweetwater Independent School District is not
incompatible and likely does not constitute a conflict of interest
under chapter 171 of the Local Government Code.
Very truly yours,
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee