ATTORNEY GENERAL OF TEXAS GREG ABBOTT

The Honorable Isidro 

### R. Alaniz 49th Judicial District Attorney Post Office Box 1343 Laredo, Texas 78042

Dear Mr. Alaniz: April 5,2010
Opinion No. GA-0766 Re: Whether a city manager of a general-law 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)

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 ofthe common-law doctrine of incompatibility prevents service in both positions, and we limit our analysis accordingly. The common-lawdoctrine ofincompatibilityrecognizes and prohibitsthree kinds of conflict 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 incompatibilityprevents one person from holding two offices, one ofwhich 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 appointmentto the offices to whichtheymay appoint."). Self-employmentincompatibility similarly prevents one person from holding an office and an employmentthatthe office supervises. Tex. Att'y Gen. Op. No. GA-0199 (2004) at 2. As you recognize, neither self-appointment incompatibilitynor self-employment incompatibility apply here because the school district board oftrustees 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; cfTex. 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 ofa metropolitan transit authority). Conflicting-loyalties incompatibility "prohibits an individual from simultaneously holding two positionsthat wouldpreventhim orherfrom exercisingindependent 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

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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 instructornot an officer); GA-0199 (2004) at2 (cityfmance directornotanofficer); 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 conferreduponthe individualtobe exercisedbyhimfor thebenefit of thepublic largely independent ofthe control ofothers." 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 ifhis or her actions are subject to control by a superior body, for in such instance," the personis notexercising authority "largelyindependent of the control ofothers." Tex. Att'y Gen. Op. No. GA-0169 (2004) at 3. A member ofthe board oftrustees ofan independent school district is clearly an officer for purposes ofincompatibility 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 ofthis office concluded that "in the usual instance, a city manager who serves at the will ofa 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 ofa city manager in a general-law city, a similar analysis applies here. Whengeneral-lawmunicipalities adopt a citymanagerform ofgovernment,"[ t]hecitymanager is appointed by and serves at the will ofthe governing body ofthe 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 ofthe control ofothers,' since the superiorbody 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 citymanager ofa general-lawcitydoes nothold anoffice as required for conflicting-loyalties incompatibility to apply. As a result, conflicting..;loyalties incompatibility will notprohibit the city manager ofa general-law city from serving onthe board oftrustees ofan independent school district whose boundaries contain the municipality.The Honorable Isidro 

### R. Alaniz

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### 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 conflictingloyalties incompatibility will not apply to prevent the city manager from also serving on the board oftrustees ofa school district whose boundaries contain the city manager's municipality.

ANDREW WEBER First Assistant Attorney General JONATHAN 

### K. FRELS Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Virginia K. Hoelscher Attorney General ofTexas

Assistant Attorney General, Opinion Committee