Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 5,2010
The Honorable Isidro R. Alaniz Opinion No. GA-0766
49th Judicial District Attorney
Post Office Box 1343 Re: Whether a city manager of a general-law
Laredo, Texas 78042 municipality may simultaneously serve as a member
of the board of trustees of an independent school
district whose boundaries contain the municipality
(RQ-0828-GA)
Dear Mr. Alaniz:
You request an opinion "regarding whether a city manager of a general law city with a
council-city manager form of government may serve on the board of trustees of an independent
school district whose district boundaries contain the municipality."! You ask specifically about
whether the conflicting loyalties aspect of the common-law doctrine of incompatibility prevents
service in both positions, and we limit our analysis accordingly.
The common-law doctrine ofincompatibility recognizes and prohibits three kinds ofconflict
that may arise from holding two public offices: self-appointment, self-employment, and conflicting
loyalties. Tex. Att'y Gen. Op. No. GA-0307 (2005) at 3. Self-appointment incompatibility prevents
one person from holding two offices, one of which is appointed by the other. See Ehlinger v. Clark,
8 S.W.2d 666, 674 (Tex. 1928) ("[A]l1 officers who have the appointing power are disqualified for
appointment to the offices to which they may appoint. "). Self-employment incompatibility similarly
prevents one person from holding an office and an employment that the office supervises. Tex. Att'y
Gen. Op. No. GA-0199 (2004) at 2. As you recognize, neither self-appointment incompatibility nor
self-employment incompatibility apply here because the school district board of trustees does not
appoint or supervise the city manager, nor does the city manager appoint or supervise the board of
trustees. Request Letter at 1-2; cf Tex. Att'y Gen. Op. No. GA-0538 (2007) at 1 (concluding that
self-appointment and self-employment incompatibility were not applicable where city manager was
serving on the board of a metropolitan transit authority).
Conflicting-loyalties incompatibility "prohibits an individual from simultaneously holding
two positions that would prevent him or her from exercising independent and disinterested judgment
in either or both positions." Tex. Att'y Gen. Op. No. GA-0169 (2004) at 2. Relevant to your
lRequest Letter at 1 (available at http://www.texasattomeygeneral.gov).
The Honorable Isidro R. Alaniz - Page 2 (GA-0766)
request, conflicting-loyalties' incompatibility applies only when an individual holds two positions
both constituting an "office." Tex. Att'y Gen. Op. Nos. GA-0273 (2004) at 3 (community college
instructor not an officer); GA-0199 (2004) at2 (cityfmance director not an officer); GA-0127 (2003)
at 3 (umpire at school district baseball games not an officer). The decisive factor distinguishing a
public officer from a public employee is ''whether any sovereign function of the government is
conferred upon the individual to be exercised by him for the benefit ofthe public largely independent
of the control of others." Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578,583 (Tex. 1955)
(citation omitted). Prior opinions from this office have concluded that "a person is not ordinarily
an officer if his or her actions are subject to control by a superior body, for in such instance," the
person is not exercising authority "largely independent ofthe control of others." Tex. Att'y Gen. Op.
No. GA-0169 (2004) at 3.
A member of the board of trustees of an independent school district is clearly an officer for
purposes of incompatibility analysis. See Tex. Att'y Gen. Op. No. GA-0328 (2005) at 1 (concluding
the position of school board trustee constitutes an office). However, a prior opinion of this office
concluded that "in the usual instance, a city manager who serves at the will of a mayor and council
does not hold an 'office. '" Tex. Att'y Gen. Op. No. GA-0538 (2007) at 2. While that opinion did
not expressly address the position of a city manager in a general-law city, a similar analysis applies
here. When general-law municipalities adopt a city manager form of government,"[t]he city manager
is appointed by and serves at the will of the governing body of the municipality." TEx. Loc. GOV'T
CODE ANN. §§ 25.021, .028 (Vemon2008).
If a city manager 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" the manager's actions. Tex. Att'y Gen. Op. No. JM-1266 (1990) at 2 (concluding that
article XVI, section 40 did not bar a city council member from being employed by other districts).
Thus, a city manager of a general-law city does not hold an office as required for conflicting-loyalties
incompatibility to apply. As a result, conflicting..;loyalties incompatibility will not prohibit the city
manager of a general-law city from serving on the board of trustees of an independent school district
whose boundaries contain the municipality.
The Honorable Isidro R. Alaniz - Page 3 (GA-0766)
SUMMARY
The actions of a city manager in a general-law municipality
are subject to control by the city council. As a result, the city
manager will not be considered to hold an office, and conflicting-
loyalties incompatibility will not apply to prevent the city manager
from also serving on the board of trustees of a school district whose
boundaries contain the city manager's municipality.
Attorney General of Texas
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee