### THE ATTORNEP GENER.&L OF TEXAS

Honorable Charles S. Brack Opinion No. JM-1266 Chambers County Attorney P. 0. Box 1200 Re: Whether a city council Anahuac, Texas 77514 member may simultaneously serve **as** a county special district
or school district employee, or as a director of a navigation district (RQ-2145)

DearMr. Brack:

Youhave requested our opinion regarding six possible instances ofdual office holding. Wewill briefly describe each example before addressing the subject ingeneral terms.

1. A city council member who receives a $40 permonth expense allowance andwho isalso a county sanitation and safety officer, a salaried position appointed by the commissioners court.

2. A city council member who receives a $40 permonth expense allowance andwho isalso a salaried employee of a conservation and reclamation district.

3. A city council member who receives a $40 per month expense allowance andwho isalso a salaried teacher employed by a school district.

4. A mayor who receives an $80 per month expense allowance andwho isalso a salaried employee ofa school district.

5. A city council member who receives a $40 per month expense allowance andwho also holds
aper diem compensated appointment asdirector of anavigation district.

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6. A city council member who receives a $40 permonth expense allowance andwho isalso a salaried employee ofahospital district.

Article XVI, section 40, of the Texas Constitution furnishes the primary constitutional impediment to dual office holding. With various exceptions, itprovides that "noperson shall hold or exercise at the same time more than one civil office of emolument.V* The Supreme Court has repeatedly held that the determining factor in distinguishing an officer from an employee is whether the individual inquestion exercises a "sovereign function of the sovernment . . .largely independent of the control of others." Aldine Indeo. School Dist. v. Standlev 280 S.W.2d 578, 583 (Tex. 1955), ouotina Dunbar v. Brazoria'Countv, 224 S.W.Zd 738. 740 ITex.Civ. ADD. -Galveston 1949, writ ref'd). Eiected officials are ‘ciearlyofficers, and 'therefore themayor and city council members under consideration here are officers forpurposes of article XVI, section 40.

As to the other positions ofwhich you inquire, it is useful to consider Attorney General Opinion 3X-499 (1986), where we held that the chief appraiser of an appraisal district isan employee rather than an officer: The opinion turned on the consideration that the chief appraiser exercised his responsibilities subject to review and correction by the appraisal review board, and served at their pleasure. Inour opinion, ifan individual may be terminated at will by a superior body, he canhardly be said to exercise power "largely independent of the control of others," since the superior body is ina position todictate his every act. Based on these criteria, wemay conclude that since each of the positions inexamples 1, 2,and 6 is subject to control by a superior body, those positions are employments rather than offices. Thus, article XVI, section 40, does not bar a city council member fromholding simultaneous positions as a county sanitation and safety officer, an employee of a conservation and reclamation district, oran employee of a hospital district.

With regard to your third and fourth examples, a further inquiry isnecessary. Article XVI, section 40, also establishes an additional restriction forcertain employees who serve on the governing bodies of acity or other local governmental districts. Itprovides inpertinent part:

State employees or other individuals who receive all or part of their compensation either directly or indirectly from funds of the State of Texas andwho are not State officers, shall notbe barred from serving as

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members of the governing bodies of school districts, cities, towns, or other local governmental districts: provided, however, that such State employees or other individuals shall receive no salary for serving asmembers of such governing bodies.

Tex. Const. art. XVI, 540. Teachers and other employees of school districts receive a portion of their compensation from funds of the state of Texas. As a result, they may serve as city council members or as mayor only if they receive no salary for such service. Attorney General Opinion JM-118 (1983):MW-230 (1980). We must therefore determine whether the $40 or $80permonth "expense allowance" constitutes a salary. If itconstitutes a salary, the school teacher must renounce it inorder to serve on the city council. LetterAdvisory No. 20 (1973).

Forpurposes of the quoted provision of article XVI, section 40, **salary*1 does not include legitimate reimbursement of expenses. -See aenerallv Whitehead v. Julian, 476 S.W.2d 844 /Tex. 1972) Iemense allowance does not make office a "lucrative office";-salary, fees, or other compensation must bepaid): Willis v. Potts, 377 S.W.Zd 622 (Tex. 1964) (tokenpayment of $10 permeeting makes city council member's office a "lucrative office"); Attorney General Opinion MW-450 (1982);MW-230. In the examples you cite, we donot believe that the school teacher orother salaried employee of the school district may receive compensation for serving asmayor or city council member merely bydenominatinga $40 or $80monthly payment an "expense allowance" rather than a ltsalary.*'At thevery least, the official should submit an affidavit that the actual expenses he incurs each month equal or exceed the allowance payment. The better practice would be forthe official to itemize his expenses eachmonth inorder todemonstrate that the allowance does not exceed expenses incurred. See Attorney General Opinion H-992 (1977).

As to your fifth example, a director of a navigation district holds anoffice, and since, byyour description, he receives aper diem compensation for such service, he may avoid the prohibition of article XVI, section 40, only if his city council position isnot one of emolument. The same test applied to the school district employees inyour third and fourth examples is applicable here: ifthe "expense allowance" canbe fairly demonstrated to constitute reimbursement for actual expenses, the constitutional provision does not bar the city council member from also serving as director ofanavigation district.

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Wemust also consider the common law doctrine of incompatibility as applied to the positions ofwhich you inquire. That doctrine prohibits one individual from occupying "twooffices where one office might thereby impose itspolicies on the other or subject itto control in some other way." Attorney General Opinion JM-129 (1984); see &&lg Attorney General Opinion JM-133 (1984). The aspect of the doctrine relevant here, sometimes called the "conflicting loyalties" type of incompatibility to distinguish it from the "self-employmentI0type, see Letter Advisory No. 114 (1975),has never been held to apply to a situation in which one position isanoffice and the other an emDlovment. Indeed, the original Texas case involving incompatibility, Thomas v. Abernathv Countv Line IndeD. School Dist., 290 S.W. 152 (Tex.Comm'n App. 1927, judgm't adopted), involved the gffices of city alderman and school trustee. On other occasions, wehave held incompatible the offices of community college trustee and county commissioner, Attorney General

.~.-- Opinion JM-129-;; 'andthe offices of county auditor and city~ council member. Attorney General Opinion JM-133; see also Letter Advisory No. 149 (1977).
Applying these principles toyour six examples, we believe it isclear that incompatibility has no application tonumbers l-4 or tonumber 6, since ineach instance one of the positions isamere employment. As to the fifth example, it isequally apparent that both positions are offices. If the geographical boundaries of the navigation district overlap with those of the city ofwhich the individual is a council member, there isat least apotential for conflicting loyalties. We cannot say asamatter of law, however, that these positions are incompatible. If, for example, the two political subdivisions contract with each other, there probably exists sufficient potential forconflicting loyalties as to render the two positions incompatible. Again, if the navigation district has and exercises taxing authority, the potential forconflict isprobably insurmountable. We conclude that the common lawdoctrine of incompatibility may, but does not as amatter of law, prohibit a single individual from serving both as amember of a board of directors of a navigation district and as a city council member of amunicipality where the territory of the district andmunicipality overlap.

SUMMARY

Neither article XVI, section 40, of the Texas Constitution nor the common law doctrine of incompatibility bars acity council member from simultaneously serving as a county sanitation and safety officer, an

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employee of aconservation and reclamation district, or an employee of a hospital district. Amayor or city council member **iS** notbarred by incompatibility from simultaneously serving as an employee of an independent school district, but he must renounce any salary or compensation for serving asmayor or city council member. A city council member isbarred by article XVI, section 40, from serving asadirector of a navigation district unless the allowance received for serving as council member canbe demonstrated to constitute reimbursement for expenses only. Common-law incompatibility may, depending on the circumstances, bar one individual from serving both as city council member and asdirector ofanavigation district, but itdoes not do soasamatter of law.

JIM MATTOX Attorney General of Texas

MARY KELLER FirstAssistant Attorney General

LOU MCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RENEA HICKS Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared byRick Gilpin Assistant Attorney General

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