ATTORNEY GENERAL OF 

### TEXAS GREG ABBOTT

September l&2006

The Honorable Russell Wilson Wilson County Attorney 1420 Third Street Floresville, Texas 78 114 Opinion No. GA-0460 Re: Whether a county attorney may accept appointment as avoluntary ombudsman for the National Committee for Employer Support of the Guard and Reserve (RQ-045%GA) Dear Mr. Wilson: You ask whether a county attorney may accept appointment as a voluntary ombudsman for the National Committee for Employer Support of the Guard and Reserve (“ESGR”).’ ESGR was created in 1972, under Department ofDefense (“DOD”) directive 1250.1, as the lead DOD organization “to promote cooperation and understanding between Reserve component members and their civilian employers and to assist in the resolution of conflicts arising from an employee’s military commitment. “2 “The primary means of assistance in preventing, resolving, or reducing employer and/or employee problems and misunderstandings

. is done through a nationwide Ombudsman program.” About ESGR, supra note 2; Request Letter, supra note 1,at 2. “ESGR has anational network of over 900 volunteer ombudsmen who help resolve issues between employers and their employees who serve inthe National Guard and Reserve.” About ESGR, supra note 2; Request Letter, supva note 1, at 2. “The Ombudsmen Services Program was established in 1974 to provide information, counseling, and informal mediation of issues relating to compliance with the Uniformed Services Employment and Reemployment Rights Act.“3 “The Ombudsmen Services Program provides information, informal mediation, and referral service toresolve employer conflicts. ESGR

### isnot an enforcement agency anddoesnotoffer legal counsel OY 

### advice.” About .OSP, supra note 3 (emphasis added). “More than 96 percent of all such requests for assistance are resolved in this informal process, without requiring referral to the Department of Labor for formal

‘See Letter from Honorable Russell Wilson, Wilsdn County Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 1(Mar. 1,2006) (on tile with the Opinion Committee, also available afhttp:llwww.oag.state.tx.us) [hereinafter Request Letter].

*NAT’LCOMM.FORESGR,WHATISESGR? [hereinafferAboutESGR], mnilable athttp://~.esgr.org/about ESGR.asp (last visited Sept. 5,2006); see Request Letter, su~~ranote 1, at l-2.

‘NAT’LCOMM.FORESGR, ESGR PROGRAM-OMBUDSMEN SERVICES [hereinafter About OSP], mnilable at http://www.esgr.org/employers2/programs.asp?c=ombudsman.html (last visited Sept. 5,2006).The Honorable Russell Wilson - Page 2 (GA-0460)

investigation.” Id. Your question implicates both article XVI, section 12ofthe Texas Constitution and the common-law doctrine of incompatibility. Article XVI, section 12 ofthe Texas Constitution provides that “[n]o member of Congress, nor person holding or exercising any office of profit or trust, under the United States, or either of them, or under any foreign power, shall be eligible as a member of the Legislature, or hold or exercise any office of profit or trust under this State.” TEX.CONST. art. XVI, § 12. A county attorney, as an elected official, clearly holds an “office of profit or trust under this State.” Id. art. XVI, 3 12;see id.art. V, 521. The question before us is whether avolunteer ombudsman for ESGR holds an “office of profit or trust, under the United States.” Id. art.XVI, fi 12. In 1955 the Texas Supreme Court declared that “the determining factor which distinguishes apublic officer from an employee iswhether any sovereign function ofthe government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others.” AldineIndep.Sch.Dist. v. Standley,280 S.W.2d 578, 583 (Tex. 1955). In an opinion issued in2003, this office said that amember of alocal selective service board~does not hold anofftce oftrust under the United States “because alocal board’s governmental powers are exercised only in the event of [a]mandatory induction into the military services, and federal law does not today provide for conscription.” Tex. Att’y Gen. Op. No. GA-0057 (2003) at 6. Thus, amember of acity council was not barred by article XVI, section 12from simultaneously serving as amember ofalocal selective service board. See id. By contrast, a 1991 opinion ofthis office found that ajustice ofthe Supreme Court of Texas was barred by article XVI, section 12 from serving as a member of the board of directors of the State Justice Institute because amember ofthat board was an appointee of the President, and the board members “are expressly charged with the duty to establish policy and funding priorities for the institute, to issue rules and regulations for the institute, and to distribute federal funds in the form of grants and cooperative agreements or contracts.” Tex. Att’y Gen. Op. No. DM-49 (1991) at 6. As we have indicated, an ombudsman for ESGR is a volunteer. See About ESGR, supra note 2; Request Letter, supranote 1, at 2. Federal law states that the Secretary of Defense may accept “[v]oluntaryservices tobeprovided forprograms providing services tomembers ofthe armed forces.” 10U.S.C.A. 5 1588(a)(3) (West 1998 & Supp. 2006). The same statute provides that with regard to aperson performing voluntary services “the Secretary concerned may not place the person in Id.§ 1588(b)(3)(A). Because an ESGR ombudsman does not offer legal counsel or advice, does not have enforcement authority, and, specifically by federal law, performs no policy-making function, he does not, in our view, exercise “any sovereign function ofthe government [that is] largely independent ofthe control of others.” Aldine,280 S.W.2d at 583. As aresult, he does not hold an “office ofprofit or trust, under the United States” in contravention of article XVI, section 12 of the Texas Constitution, TEX. CONS?. art. XVI, 5 12. As to common-law incompatibility, there are three aspects: self-appointment, selfemployment, andconflictingloyalties. SeeTex. Att’y Gen. Op. Nos. GA-0307 (2005) at 3,GA-0224 (2004) at2, GA-0032 (2003) at4. Because acounty attorney neither appoints nor employs an ESGR ombudsman, nor does an ESGR ombudsman appoint or employ a county attorney, the first twoThe Honorable Russell Wilson - Page 3 (GA-0460)

branches ofincompatibility are inapplicable. As to the third aspect--conflicting loyalties-it iswell established that its applicability requires that each position constitute an “office.” Tex. Att’y Gen. Op. Nos. GA-0350 (2005) at 4, GA-0273 (2004) at 3. Because the position of ESGR ombudsman isnot an offrce, conflicting loyalties incompatibility does not barthe simultaneous holding ofthe two positions at issue here. We conclude that a county attorney is not barred by either article XVI, section 12 of the Texas Constitution or the common-law doctrine ofincompatibility from simultaneously serving as a volunteer ombudsman for the ESGR.The Honorable Russell Wilson - Page 4 (GA-0460)



### SUMMARY A county attorney is not barred by either article XVI, section 12 of the Texas Constitution or the common-law doctrine of incompatibility from simultaneously serving as a volunteer ombudsman for the National Committee for Employer Support ofthe Guard and Reserve. Very truly yours,

KENT C. SULLIVAN First Assistant Attorney General ELLEN L. WITT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee