JIMMATTOX AttorneyGeneral

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AnEqualOppOflUnilYl Affirmative ActionEmployer 

# TheAttome)! General ofTexas
Sept.r,mber13, 1984

Honorable Gibson D. (Gib) Lewis Speaker Texas Houseof Reprwentatives P. 0. Box2910 Austin, Texas 787t&

Dear Speaker Lewis:
Your Opinion No. JM-203
Re: Whether certain public officers and employees may be appointed to the interim State Board of Education

letter requesting anopinion from this office reads in part:
Asyou know, the Legislative Education Board is

. . . rev:lw[ing] the qualifications of individuals who:wnamesmaybe submitted to the governor for appoinxment to the transitional State Board of Education created by House Bill No. 72 from the recent sp~ri:lal session.
Prior zo House Bill No. 72, officers and employees >fthe state or a political subdivision of the s’:;lte were not eligible to serve on the State Board of Education. Educ. Code 111.22(b). Thelegislature eliminated the disqualification on the basi;s of employment with the state or a political subdivision (article I, Part B, section 2, House Ml1 No. 72). and specifically provided’ that the disqualification on the basis of holding
an offica: with the state or a political subdivision cf the state does not apply to persons appointed to the transitional board (article 1. Part 8. section 4(b), HouseBill No. 72). Aowever, we understand that a common law doctrine relating to incompatible offices may prevent :wmepersons from holding their current position .md membership on the State Board of Education at the same time, even though those persons are not statutorily ineligible. Specifically, weare concerned about the following categories: (1) p~‘11ic school professional employees who are cert:.j’ied under state law and State Board of

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Education rules (this would include teachers, counselors, administrators, andother professional positions);
(2) school district trustees; (3) junior college faculty andadministrators; (4) junior college trustees; **(5)** senior co:.l.ege or university faculty and administrators, psrticularly those involved in teacher education programs;
(6) senior college or university regents; **(7)** regional employees; and education service center

(8) Central Mucation Agency officers and employees.
As speaker of :he house and chairman of the Legislative Educ;azloa Board, I request your official opinion j,r regard to the ability of those persons listed above **to** hold both the listed position and membership on the State Board of Education.
Aouse Bill No. 72 enacted by the second called session of the Sixty-eighth Legislature iwtitutes anumberof reforms applicable to the public education system j.nTexas. Acts **1984,** 68th Leg., 2ndC.S., ch. 28. at 269. Amongthe changes: the previously existing, elected State Board of Education Ls to be abolished and replaced by a transitional board of fif :t?en members to be appointed after the provision takes effect, 1~. when approval of the United States Department of Justice is obtained. Thetransitional board membersare to serve until anew. electotl board takes office onJanuary 1, 1989.
Eouse Bill No. 72, aoxrg other things, amends section 11.22 of **the**Education Codespecifyin the qualifications for membership onthe State Board of Education. Prior to such action, subsection (b) thereof read as follows:

(b) Noperson :$hall be eligible for election to or serve on the board if he holds an office with the State of Texas or any political subdivision thereof, or holds employmentwith or receives any compensation for ;;ervices from the state or any political subdivision thereof (except retirement benefits paid by %e State of Texas **or** the federal

p. 895Ronorable Gibson D. (Gib) Lew:;s- Page 3 (~~-203)

.

government), or engages in organized public educational activi::r. (Emphasis added).
HouseBill No. 72changed it ‘:oread instead:

Noperson shall be eligible for election to or acme on the board if he holds anoffice with the State of Texas c#r any political subdivision thereof.
Acts 1984, supra. at 279. The change makes .the :rf:atute applicable to officers only; the statutory restriction on the:eligibility of employees andindependent contractors to the board has been dropped. But even with respect to officers, House Bill No. 72 provides in its fourth section. which establishes the interim board, that “Section 11.22(b), Education Code. as amendedby this Act, dotr:snot apply to a person appointed under this section.” Acts 1984. WE. 54(b), **at** 282.
It is clear to us that the exemption of interim board members from the strictures of secticn 11.22(b) of the Education Codewas not intended to exempt them from all dual office prohibitions. Restrictions that prevent a ‘person f= holding more than one public position or office at the! same time may originate in either constitutional. statutory, or commonlaw. ,See 47Tex. Jur. 2d. Public Officers 5527 et seq. (1963). Article III’section 18. of the Texas Constitution, for instance, makes a legislator Ineligible to “any office or place, the appointrrent to which msybemade, Inwhole or in part. by either branch of I:he Legislature.

. . .V The legislature could not exempt interim board members from the article III, section 18 constitutional prohibition. andwe ascribe to it no intent to do so. Similarly, we do not believe the legislature intended to exempt themfrom the commonlawbar of incompatibility.’
The commonlaw doctrina! of incompatibility, briefly described, prevents one person from holding two offices ~if the duties are inconsistent or in conflict, or if one office is subordinate to the other. Thomasv. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm’n.c~p. 1927, judgmt adopted); Kugle v. Glen Rose Independent School Disl:,ict No. 1. 50S.W.2d 375 (Tex. C

- Waco 19: iv. App.

$2~)rev’d~oaocfi5r~gr~~~~ sub nom. Pruitt v. Glen Rose Independent School District-No

. 1. 84 S.W.2d 1004 (Tex. 1935). The doctrine has been held to bat apublic employee fromholding apublic office which appoints. supervises, and controls the employee. See Rhlinger v. Clark, 8 S.W.2d 666 (Tex. 1928); Attorney General Letter Advisory No. 114 (1975). It protects the integrity of state Institutions bypromoting iaqartial service bypublic officials.
InAttorney General Ler.:er Advisory No. 56 (1973) this office by implication interpreted section 11.22(b) of the Education Code as a

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Honorable Gibson D. (Gib) Le%ds- Psg'e4 (JM-203)

. .

bar to dual office holding tmt is separate from (and In addition to) the c-on lawbar of incompc~tlbility, stating:

It is our opinion, therefore, that because of the express provisions af $11.22(b) of the Education Code, and/or the .comon law doctrine of Incompatibility. on,: person maynot serve at the same time as a member of the Board of Mental Health andMental 3?tardation andthe State Board of Education.
Thepassage of House Bill No. 72 exhibits no intent that the statute nowbe construed otherwise.
We think the Letter Advisory No. 56 construction of section 11.22(b) is correct and th8.t the legislature so regarded it. The statute is intended to complement and extend article XVI, section 40 of the Texas Constitution, w'l:Lchprohibits dual office holding -- but only with respect to offices of emolument. The former language of section 11.22(b) urohibited t'le simultaneous holdinn of membershiu.on

. the State Board of Education by snother office holder whether or not either office was one of emol.tment.
It is difficult to argue!.,as somedo, that thevery existence of the statute indicates an intent that any commonlaw rule regarding dual office holding be supers+ded. Theexistence of the article XVI, section 40 constitutional bar to dual office holding has not been thought to replace or invalidate the co-on law proscription against incompatibility, and neither should the existence of the section 11.22(b) statutory bar, in cur opinion. It Is an additional impedlmat to the simultaneous holilng of twooffices. Although House Bill No. 72 makes section 11.22(11:1of the Education Code inapplicable to members of the transitional board, we do not think it affects the operability of the common1~ doctrine. Consequently, weturn to the specific offices andpositionr; about which you inquire. T]~ISTEES,REGENTS
Todetermine whether the various offices andemployments youname are incompatible with servj.ce on the board, we must examine this doctrine at greater length. Weshould state at the outset, however, that acourt, with its power I:Oreceive andevaluate evidence, is in a better position to decide matters of incompatibility than is the Attorney General In issuing a legal opinion. Although we are not always provided sufficient j,nformation to resolve such questions, we can at least provide guideliuc!s to be used in resolving them.
Texas courts have d:l:rcussed the common law doctrine of incompatibility only in relal::.on to officers. Opinions of this office and judicial decisions in o,:Iler states have. however, applied it to employees. The court in Thcmlasv. Abernathy County Line Independent --

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School District, 290S.W. at 1,53.madethe following observation:

[T]he offices of rlc.hool trustee and alder& are incompatible; for cnder our system there are in the city council or board of aldermen various directory or supervlsory powers exertable in respect to school property located within the city or town and in respect to the duties of school trustee performable within its limits -- s, there mightwell ar:.se aconflict of discretion or duty in respect to health, quarantine, sanitary, and fire prevention regulations. See articles 1015, 1067, 1071, R.S. 1925. If the-me person could be aschool trustee andamemberof the city council or board oP aldermen at the same time. school policies, in manyimportant respects, would be subject to direc:t:ion of the council or aldermen Instead of to that elfthe trustees. Another Texas court determinccl that twooffices werenot incompatible:

It is quite obv:.cus from the allegations in the information, when :onsidered, as they must be, with relevant ac.d controlling statutory and charter provisions, that the offices of school trustee andcity t,a:cassessor have norelation to each other. The duties of the two offices are wholly unrelated, are in no manner inconsistent, [and) are never in conflict. Neither officer is accountable to the ather. nor under his dominion. Neither is subordinate to the other, nor has any power or right to interfere with the other in the performance of any duty. The offices are therefore not inconsistent or incompatible.

. . . State v. Martin, 51 S.W.Zd 815. 817 (Tex. Civ. App. - San Antonio 1932. no writ). There are ::wo aspects of incompatibility. First, that anoffice represents interests in conflict with those represented by the other, and. second, tt,at the lawmakesone office subordinate to andaccountable to another. These authorities provide a sufficient basis to auswer your questions about officers. School district trustees are public officers. Thomas V. Aberrathy County Line Independent School District, supra. TheState Izlard of Education has numerouspowers and duties which conflict with the legal role of school trustees. The trustees “shall have the el:c:lusive power to manageand govern the public free schools of the district.” Kduc. Code 523.26(b). The State Board of Education, however, has numerous regulatory and supervisory powers over sctcol districts. For example. the State

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Board of Education, with twoother state agencies, adopts end enforces regulations governing design, equipment, constructlon, and operation of school buses ownedand operated by a tichool district. Educ. Code $11.12. Adult education

shall be provided bypublic school districts

. . . in accordance Mth state statute and the regulations and I,l:andards adopted by the State Boardof Education,.

. Educ. Code 511.18(c) (as amerdedbyH.B. No. 72; see Acts 1984, supra, at 290). The State Boax,d adopts standards aad a process for accrediting public schools ard mayhave **to**revoke the accreditation of anon-complying school distx’lct. Educ. Code 5511.26(c)(5) (as amended byH.B. No. 72, see Acts 19E4,supra, at 292); 21.753-21.757 (added by H.B. No. 72; seeAct. 1984, supra. at 403-05). Goals for the public school system are to be estc,tlished bythe State Board. Sec. 11.26(b) (as amendedby R.B. No. 72; E Acts 1984, supra. at 292). School districts must report to the board the fiscal and management information required by stzlt,uts. See Educ. Code 023.48. There are other statutes vhich subortilnste boards of school trustees to State Board control andplace the twooffices in conflict. See, e.g., Educ. Code 5521.721(d) (alternatj.x,es to social promotion) (as amended by H.B. No. 72; see Acts 1984, lupra, at 393); 21.111(a). (b) (Vocational Education) (as amendedbyH.1). No. 72; E Acts 1984, supra. at 296); 23.29(b) (Board establishes criteria for sale of minerals by school district). Theoffices are j.ncompatible under common**law.**
Junior college trusteecl are also officers. Educ. CodeIS130.002, 130.082. 130.084; Attorney Zenera Letter Advisory No. 149 (1977). The State Board of Educat:Lon adopts standards and regulations for approving adult education programs in junior colleges. Educ

. Code. 511.18(c), supra. It is involved in the state-level administration of technical-vocational education programs in junior colleges. Edtic. Code 011.24(a); sea also Educ. Code 15135.03-135.04; Attorney General Opinions H-929 (1977); H-580, H-541 (1975). Junior college trustees vhen implementing these prozrama are subordinate ~tothe State Board’s authority. The office of junior college trustee is therefore incompatible with the office! of State Boardmember, andoneperson may not hold both offices. Regents of state colleges and universities are officers subject to the doctrine of incompatibility. The State Board has authority over standards for approv,Lng university adult education programs. Educ

. Code 011.18(c), 25~. It also establishes standards for approving teacher education programs at colleges and universities. Educ

. Code 513.032(a). 532 also Educ. Code 113.032(e) (Board prescribes competency exami%r admission to approved teacher education program). If the coannissio~~r of education determines that a teacher education program does no,: meet the board’s standards, he may

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institute sanctions, includltrg recomending that the board put the program onprobation. Educ. Code 113.033 (added by R.B. No. 72; see Acts 1984, supra. at 378). If the program does not correct ies deficiencies by the end of the 24-month probation, the State Board Is to revoke its accreditation. Id. The governing bodies of colleges and universities authorized toeetablish adult education or teacher education programs are thus allbject to the State Board’s direction and control in connection with the programs. The regents of public colleges and universities with this authority hold an office incompatible at commonlawwt:h the office of State Boardmember. See & Educ. Code 121.921 (added by B.B. No. 72; see Acts 1984. e at 402) @IL, which is part >fthe University ofGas at Austin, must submit rules andprocedures E,,rboard approval).
MPLOY EES
Before turning. to the public employments you inquire about, we will consider the rationale :ior extending the comeon law doctrine of incompatible offices to empL,,yments. Attorney General Opinion V-303 (1947) discusses the doctrine as follows:

At commonlaw :;ldopted as the law of Texas in Article 1, R.C.S., whennot inconsistent with our statutes or Const::i:ution), ‘there is **no** limit to the numberof offices which maybeheld simultaneously by the sameperson. provided that neither of them is incompac~tble with any other.

. . .’ Throop, Public Officers, p. 33. ‘The inconsistency

. . . does not consist in the physical impossibility to discharge the duties of both offices, but lies rather in a conflict of interest, as vhe,r+! one is subordinate to the other

. . . or tas the power to remove the incumbent of the ‘a-:her. or to audit the accounts of the other.’ [citing 46C.J. at 9411. MeechamonPublic Offices andOfficers, p. 269. announces the rule tobe that: ‘the merephysical impossibility of one person’s performing the duties of the twooffices as fromthe lack of time or the inability x be in tvo places at the same moment, is not the incompatibility here referred to. It mustbe an inconsistency in the functions of the twooffices, asjudge andclerk of the same court, claimant andauditor, andthe like.’ The twoTexas judicial decisions address incompatible offices, as do the authorities cited in -:he quotation above. Attorney General Opinion V-303 (1$47), after I;tating the rule on incompatible offices, proceeds to consider whether s State HighwayDepartment employee may

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work as en independent contz,actor for aschool district. It found the twojobs not incompatible, but it overlooked the threshold question of whether the commonlawdoctr,ine was even relevant to public e@Oyment or work as anindependent rc’rtractor for apolitical subdivision.
Other opinions have clc:sumedthat the commonlaw doctrine of incompatible offices applies to employments without citing authority for thus expending the doctrine. See, e.g., Attorney General Opinions MW-415 (1981) (full-time and part-time public employments); H-665 (1975) (paid firemen andvolunteer firemen); V-1346 (1951) (justice of the peace and county laborer); V-345 (1947) (employee of one state agency and independent contractor for another); Attorney General Letter Advisory Nos. 137 (1977) (probation officer and college instructor) ; 62 (1973) (school trustee and employee of Texas Rehabilitation Commissio ”); 30 (1973) (college professor and researcher for Constitutiona:. Revision Commission). Seealso Attorney General,Opinlons V-24 (1947) andO-2929 (1942) (employment with state agency “incompatible” with private employment).
These opinions expand tne commonlaw doctrine ,of Incompatibility to employments without exp:.anation or citation of authority. The conclusions are not for that reason necessarily incorrect. Someof the opinions which use ttu doctrine imprecisely find no conflict between the two positions, vhile other opinions rely on additional rules developed to prevent ~:onflicts of Interest.
In contrast, Letter Advisory No. 114 (1975) relies **on**case law from other states to concl,c,de that the office of school trustee is incompatible with employment as a teacher in the samedistrict. See Haskins v. State, 516 P.2d 1171 (Wyo. 1973); 70ALR3d 1171 (1976). Other courts faced with this issue have concluded that aninsuperable conflict of interest preverts anemployee school teacher from serving on the employer school bo;ird. **Annot.** 70 ALR3d 1188 (1976). sea Knuckles v. Boardof Education, 114S.W.Zd 511 **(KY.** 1938); Clifford7 School Committee of Lynn,-35 N.E. 634 (Mass. 1931); Visotcky v. Garfield, 273A.2d 597 (NJSuper. Ct. App. Div. 1971); Tarpov. Bowman public School District # 1., ,232 N.W.Zd 67 (N.D. 1975). Attorney General Letter Advisory NC. 114 relied on Haskins v. State for its determination that the po:.;.cies underlying the **common**law doctrine justified its expansion to prohibit an employee from serving as the employing officer. TheHaskins court reviewed the lawof other states --- andconcluded that

[tlhese [sister state] decisions

. . . uniformly declare that it is inimical to the public interest for one in pubL:lc employment to be both the employer and the employee. or the supervisor and the supervised. Subordination is the key word. After considerable research and careful consideration of the reason andbasis for the rule against incompat:ll~ility. a majority of the Court

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are convinced th.a~:we should not ourselves be bound by technic.al definitions of the word office

. . . . (Inphasis added).
516P.2d **at** 1178.
Texas courts have reachrid similar results based in part on other comeon law rules. The Texas SupremeCourt has recognized that all officers whohave appointivc! power are disqualified -from appointing themselves. Ehlinger v. Clark, 8 S.W.Zd 666 (Tex. 1928). In Starr

r ,2aT79 (Tex. Civ. App. - SenAntonio 1956, court found that the commissioners court could not employ e memberof the court as road commissioner for the entire county; such employmentwascontrary to article 2340. V.T.C.S., andto the “policy of the law.” ‘[t was in effect an effort by a public officer to contract with himself. See Cornutt v. Clay County, 75 S.W.Zd 299 (Tex. Civ. App.. - Eastland 1934, no writ): Knippa v. Stewart Iron Works, 66S.W. Z22 (Tex. Civ. App. - 1902. nowrit). The Texas courts have not relie’i on the c-on law doctrine of incompatibility to prevent employees from holding offices with inconsistent duties, but they have reached such results relying on other conflict of interest concepts. Therf ’asoning. andresult of Letter Advisory No. 114is certainly consistent blth Texas case law.
Your question thus requires us to consider whether the courts would extend incompatibiU.ty to prohibit various employees from serving on the transitional board. classes of employees: You inquire about the following

(1) public school professional employees who are certified under state law and State Board of Education rules (this would include teachers, counselors, admin:.r;trators, andother professional positions);

. . . . (3) junior co:.:.ege faculty andadministrators;

. . . . (5) senior college or university faculty and administrators, Iulrticularly those involved in teacher education programs;

. . . . (7) regional education service center employees; and (8) Central Education Agency

. . . employees.

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You vish us to determl:le vhether the duties of each class of employees sre incompatible with those of State Board of Education members. Aquestion of incompatibility is primarily alegal question, but its resolution mayrequire information not given in the relevant statutes. For example, if tvo offices serve jurisdictions which overlap geographically, thej.1,duties are muchmore likely to conflict than if they serve geograpllically separate areas. See Thomas v. Abernathy County Line Independent School District, =a; compare Attorney General Opinion JM-133 (1984) with Attorney General Letter Advisory No. 149 (1977). Information thrparticular conflicts have actually developed between anoffice andanemploymentmakesit easier to point out conflicting legal duties. See Haskins v. State, supra. This office cannot definitively resolve each incompatibility question, but ve can offer general guidance in this ares. Thelegal differences t’etveen anofficer andanemployee suggest why the incompatibility docl:rine hrs traditionally applied only to officers and has been only cautiously extended to the case of an employee and, the employing officer. A public officer, as distinguished from B public employee, has the authority to exercise a sovereign function of the novernment largely indeuendent of the control of others. Aldine :.idependent School-District v. Standley 280 S.W.2d 578 (Tex. 1955);jlunbsr v. Brszorla County, 224S.W.2d 73;’ (Tex. Civ. App. - Galveston 1949, writ ref ’d). Anemployee does not have sovereign functions tcmbe exercised independently.. His duties are assigned by others; his .rork is subject to their supervision and control. He is unlikely I:Oexercise powers or have duties which conflict vith snofficer’s powers andduties.
When so. officer sccerts a second incomostible office. he is deemed to have resigned th;! first. ThomasY.’ Abernathy County Line Independent School District, supra. This remedy highlights the difference between a public-bfficer and a public employee. Apublic officer can relinquish the drities of his office only-b; relinquishing the office. See McGuirev. Hughes, 452 S.U.2d 29 (Tex. Civ. App. - Dallas 1970, no writ). An employee, in contrast, may carry out functions, which appear to conflict with an officer’s duties, but the employee maybe able to chsxge functions through reassignment vithout relinquishing his employment.
Anemployee is most likely to havea conflict vith the officer or officers tovhomhe is directly accountable. CompareAttorney General Opinion MW-450(1982) with llttorney General Letter Advisory No. 114 (1975). Officer-emplo= incompatibility is the second kind of incompatibility, where “[slrdlordination is the keyword.” Haskins v.

supra. State, The office+s legal duties to the public do not conflict vith the employee’s duties. Instead, the employee’s personal interest in his employment wnflicts with the officer’s duty to serve the public. Cf. art. 6252-9b. 58(c) (no state officer should accept employment which could impair his independence of judgment in the performance of his official duties).

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Weturn to the smployeorl you inquire about to examine the legal relstionships between them end the State Board of Educstion. Certified public school emp:loyees. such se teachers. counselora, snd sdministrstors, are subject to the direction andcontrol of the local board of trustees. Educ. Code 123.26; see slso Educ. Code 1913.101-13.117 (employment elfteachers by school board). The State

‘Board of Education exercises sdministrstive. policy-making and rulsmaking povers which sffcct public schools and their employees. See, e.g., Educ. Code $511.18(c) (adult education programs); 11.26 (policy-making and budget%:7 powers affecting public schools); 11.26(c)(S), 11.36(s), 21.71~1-21.757 (sdded by H.B. No. 72; see Acts 1984, supra, at 403-05) (school accreditation); 16.056 (boardapproval of policies for 1mplement:tng Texas Public Education Compensation Plan). However, school exployees are, 8s s general matter, only indirectly affected bythe State Bosrd's exercise of most such povers; school employees remain directly subordinate to the locs,l board. Any conflicts between the State Board and a local board sre relevant to incompstibility between Sts:e Board membersand school trustees, not school employees.
The provisions on certification, hovever, maycsuse conflicts between the State Board and some certificated personnel. The State Boardadministers the issuar,ce of certificates. Educ. Code 513.032(s). Amongits other responsibilf~ties , the board is to prescribe competency exsm* for applicants for certificstion. Educ

. Code 513.032(e). Teachers and sdministrstoc s who did not take a certificstion examination are required to perform sstisfactorily on "an examination prescribed by the borlr,d 6.8 condition to certificstion.

. . ." Educ. Code $13.:47(s) continued (added by E.B. No. 72; see Acts 1984. supra, st 36f;). TheState Boardmayexemptpersons vho perform sstisfsctorily on en examof equal difficulty given by the employing district. Educ. Co)de§13.047(g) (added byH.B. No. i2; see - Acts 1984, supra, at 369).
These provisions raise the possibility that s certified teacher serving 8s a State Board membermight have to prepare an exsminstion which he is required to t.%:ce. Wedo not believe these provisions create an incompstibility between the twopositions. TheState Board might decide to use sn e:romination prepared by a testing service rstber than preparing questions itself. SeeAttorney General Opinion h-78 (1967). Some certificated persons arenot required to take the exsmination. The conflict is not inherent in the employment status, but instead is aconflict that someindividusl public school employees mayhave. If this conflic,: actually arises, the certificated member msyneed to choose between %msining ontheboard andtaking the exam. The conflict is not, however. insuperable. Weare not compelled to conclude that commonlaw bars certificated personnel from serving on the State Board.
Younext inquire about junior college faculty andadministrators. As already discussed, the litate Board has someauthority to regulate

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the adult l

ducstion and vocational education programs offered by junior college districts. In our opinion, the board’s administrative and rulemaking povera do not create incompstib~ility between board membersandjunior college teachers end administrators. Thejunior college personnel donot hsvl!statutory duties vhich conflict with the .duties of board members. ~hc!y,sre accountable to the junior college trustees, not to the board. Eventhoughjunior college personnel are indirectly affected by boari, powers, wedonot believe they have the kind of insuperable conflict which constitutes incompstibility.
Younext inquire about :senior college or university faculty and sdministrstora, perticulsrl:r those Involved in teacher education programs. Wewill deal on1.yvith the Education Code provisions on teacher education. See ,ger.erslly Educ. Code, ch. 61 (Coordinating Board, Texas College and Un1.versity System). Theboard establishes standards for approving tec,cher education programs st colleges and universities. Educ. Code 013.032(a). If the Commissioner of Education determines that a teacher education program fails to meet the Board’s standards. he first notifies the chief sdministrstor and *w regents’ accreditation committee in confidence. Educ. Code 613.033(s) (added by H.B. No. 72; E Acts 1984, supra, st 378-79). If the deficiency is not ccrrected, the commissiooer is to give the regents public notice andfinally recommendthat the State Boardplace the programonprobation. Id. --- Section 13.033(s) of the Education Code gives the chief administrator of teacher education programs anopportunity to correct deficiencies in the program. If deficiencies sre not corrected, the board mayimpose the ssnctio~a of probation andultimately revoke its accreditation. Thechief administrator andthe board have conflicting interests and responsibilities. The employer must correct defici~encies in his programilndnodoubt has astrong interest in its continued operation without public sanctions. Theboard membermust enforce compliance with its :Itandards, even by revoking the program’s sccredltstion if necessary. Webelieve the commonlaw doctrine of incompstibi3 icy may reasonably be extended to bar the chief sdministrstor of a teacher education program from serving on the board.
EDUCATION ZERVICECENTER

BMPLOYEES
You next inquire a::cut regional education service center employees. Under section 11.32 of **the** Education Code, the board provides byrule andregulat,ion for the estsblishment andoperation of centers to provide educatlousl servi~ces to school districts and to coordinate educational planuing in the area. Eachcenter is governed by a locally appointed board of directors, vhich has statutory authority to employ necessary personnel. Educ. Code 011.32(d). The employees of the centers arc hired by and accountable to the local board of directors. TheState Board’s rules for operating the center necessarily affect employees. but they do not make employees

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immedistely subordinate or accountable to the board. Nor do they raise aquestion of conflicting legal interests, although certainly sn smployee'a ideas about education maybe Influenced by the nature of his employment. Cormsonlaw incompstibility does not prevent his service.
EDUCATION AGENCY

OFFICERS

ANDRMPLOYEES
You have Inquired sbcut officers and employees of the Central Education Agency. However, wehave been informed thst no officer or employee of this sgency has been nominated to the governor. Therefore, wedonot belie%,*, it is necessary to address this question at this time.
This opinion is limitc!e, to the specific offices, employments and Educstion Code provisions discussed. As slresdy noted. some incompatibility questions can only be resolved after examining detailed information about anindividusl's legal powers andduties. HouseBill No. 72 enacts substantial :!lsnges in the Education Code, and has not yet been interpreted in z.dministrative constructions or judicial decisions. Future interpretations of this law mayraise questions about incompstibility not considered here or suggest reasons for exceptions to someof our answers to your questions. Such questions mustbe resolved ons case bycase basis with reference to the general principles stated here.
SUMMARY

Thecommonlsv doctrine of incompstibility bars school trustees, junior college trustees, and certain college and university regents from serving on the trsnsitionsl State Board of Education estsblkhed under House Bill No. 72. Acts 1984, 68th Leg., 2nd C.S., ch. 28, at 269. Certain employees of educational agencies whoare directly subordinate to or accountable to the board sre barred by the commonlsv doctrine from serving on it. ?'his opinion is limited to the offices, employments andEducation Codeprovisions discussed in it. uly yo ,

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GREEN First Assistant Attorney General
DAVIDR. RICBARDS Executive Assistant Attorney General

1,. 906: N Honorable Gibson D. (Cib) Lwie - Page 14 (JM-203)

Prepared by SusanL. Garrison Assistsnt Attorney Genersl
APPROVED: OPINIONCOMMITTEE
Rick Gilpin, Chairman Colin Carl SusanGarrison JimHoellinger

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