Can an acting city manager also serve on a metropolitan transit authority board in Texas?

TX AG Opinion GA-0538: Can an acting city manager sit on a transit authority board?

Plain-English summary

A state representative asked whether the common-law doctrine of incompatibility, which limits one person from holding two conflicting public positions, would stop a member of a metropolitan transit authority's governing board from also serving as the acting city manager of a city inside the authority's service area. The Attorney General walked through the three branches of that doctrine and concluded the answer, on these facts, was no.

The doctrine has three parts. Self-appointment incompatibility blocks a person from being in a position to appoint himself to a second post; that did not apply, because the transit authority board does not appoint the acting city manager and the city manager does not appoint board members. Self-employment incompatibility blocks one position from supervising the other; that did not apply either, because neither the board nor the city manager supervises the other. The third branch, conflicting loyalties, prevents one person from holding two positions in different governmental bodies whose interests might collide. This is the branch that traces back to a 1927 case holding that a school trustee could not also be a city alderman, because the council's supervisory powers over school property could pull the trustee's loyalties in two directions.

The conflicting-loyalties branch has a threshold requirement: both positions must be public "offices." Under the Texas Supreme Court's test, what makes someone an officer rather than an employee is whether a sovereign function of government is given to that person to exercise for the public benefit, largely free of others' control. A city manager who serves at the will of the mayor and council generally is not an officer, and here that conclusion was even clearer because the acting city manager worked under an employment agreement stating that he served "at the pleasure of the Council" and could be terminated at any time. Someone who can be fired at will is controlled by others, so the acting city manager held a job, not an office. Because one of the two positions was not an office, the conflicting-loyalties doctrine could not apply, and the acting city manager was not barred from also serving on the transit authority board.

Currency note

This opinion was issued in 2007. Subsequent court decisions or later AG opinions may have refined the common-law incompatibility doctrine or the officer-versus-employee test. Treat this page as historical context, not current legal advice. Verify current law before relying on the analysis here.

The officer-versus-employee analysis turned on the specific terms of the city's employment agreement. A different agreement, or a manager position structured to exercise independent governmental authority, could change the result. Confirm the current state of the incompatibility doctrine and the facts of any specific arrangement before relying on this opinion.

Who this opinion affected (as of 2007)

Acting and at-will city managers: The opinion told them that, when they serve under an employment agreement at the pleasure of the mayor or council, they are employees rather than officers, so the conflicting-loyalties branch of incompatibility does not bar them from also holding an office such as a transit authority board seat.

Metropolitan transit authority boards: The opinion indicated that appointing or seating an at-will city manager from a member city would not run afoul of common-law incompatibility on these facts.

Cities and councils: The opinion is a reminder that whether a manager position counts as an "office" depends on how much independent authority it carries and how much control the council retains, with an at-will employment agreement pointing strongly toward employee status.

Common questions

Does the incompatibility doctrine stop a city manager from serving on a transit board?
Not where the city manager is an at-will employee, according to this opinion. The conflicting-loyalties branch applies only if both positions are offices, and an at-will acting city manager is an employee, not an officer.

What are the three parts of common-law incompatibility?
The opinion lists self-appointment, self-employment, and conflicting loyalties. The first two did not apply because neither position appoints or supervises the other.

What makes a position an "office" rather than a job?
The opinion applied the Texas Supreme Court's test: whether a sovereign function of government is conferred on the person to exercise for the public benefit, largely independent of the control of others.

Why did the employment agreement matter?
The opinion explained that the agreement let the council terminate the acting city manager at any time, making clear the manager served at the council's pleasure and was therefore controlled by others, so the position was not an office.

Background and statutory framework

The common-law doctrine of incompatibility has three aspects: self-appointment, self-employment, and conflicting loyalties (Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted); Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)). The opinion found self-appointment inapplicable because the transit authority board does not appoint the acting city manager and vice versa, and self-employment inapplicable because neither supervises the other. The conflicting-loyalties branch, which derives from the Thomas school-trustee-and-alderman holding, prohibits one person from holding two positions in different governmental bodies whose interests may conflict, but it applies only if both positions are public offices.

The test for whether a position is an office was set by the Texas Supreme Court: the determining factor distinguishing a public officer from an employee is whether a sovereign function of government is conferred on the individual to be exercised for the public benefit largely independent of the control of others (Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)). An individual whose actions are subject to the control of others is generally not an officer, so a city manager who serves at the will of a mayor and council usually does not hold an office. Here, the acting city manager's employment agreement provided that he "shall serve at the pleasure of the Council" and could be terminated at any time, making clear the position was not an office under Aldine. Because one position was not an office, the opinion concluded the conflicting-loyalties doctrine did not bar the acting city manager from serving on the transit authority's governing board.

Citations

Cases:

• Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted)
• Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)
• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0538
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0538.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

GREG ABBOTT

April 12, 2007

The Honorable James L. Keffer
Chair, Ways and Means Committee
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0538

Re: Whether, under the common-law doctrine of incompatibility, a member of the governing board of a metropolitan transit authority may simultaneously serve as acting city manager for one of the cities within the authority's service area (RQ-0543-GA)

Dear Representative Keffer:

You ask whether, under the common-law doctrine of incompatibility, a member of the governing board of a metropolitan transit authority (the "MTA") may simultaneously serve as acting city manager for one of the cities within the MTA service area.

As you state, the common-law doctrine of incompatibility prohibits conflicts that may arise from holding two public positions. See Request Letter, supra note 1, at 1; Tex. Att'y Gen. Op. No. GA-0032 (2003) at 4. It has three aspects: (1) self-appointment; (2) self-employment; and (3) conflicting loyalties. See Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted), Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928); Tex. Att'y Gen. Op. Nos. GA-0468 (2006) at 1-2, GA-0360 (2005) at 4, GA-0273 (2004) at 2, GA-0132 (2003) at 2. Self-appointment incompatibility is not applicable here: The governing board of the MTA does not appoint the acting city manager, nor does the acting city manager appoint members of the MTA governing board. Similarly, self-employment incompatibility does not apply because the MTA governing board does not supervise the acting city manager, nor does the city manager supervise members of the MTA governing board.

The third component of common-law incompatibility, conflicting loyalties, prohibits an individual from holding two positions in different governmental bodies that may have conflicting interests. See, e.g., Tex. Att'y Gen. Op. No. GA-0328 (2005) at 2, 4. This doctrine derives from a 1927 case in which the court declared:

In our opinion the offices of school trustee and alderman are incompatible; for under our system there are in the city council or board of aldermen various directory or supervisory 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--e.g., there might well arise a conflict of discretion or duty in respect to health, quarantine, sanitary, and fire prevention regulations. If the same person could be a school trustee and a member of the city council or board of aldermen at the same time, school policies, in many important respects, would be subject to direction of the council or aldermen instead of to that of the trustees.

Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted) (citation omitted).

In order for conflicting loyalties to be applicable, both positions must be "offices." See, e.g., Tex. Att'y Gen. Op. Nos. GA-0195 (2004) at 1-2, GA-0127 (2003) at 3, JC-0054 (1999) at 2, JM-1266 (1990) at 4. The standard for determining whether a particular position is an "office" was articulated by the Texas Supreme Court in 1955:

[T]he determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others.

Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955).

It is well established that, in general, an individual whose actions are subject to the control of others is not an "officer" under the test of Aldine. See Tex. Att'y Gen. Op. No. JM-1266 (1990) at 2; see also Tex. Att'y Gen. Op. Nos. GA-0350 (2005) at 3, GA-0199 (2004) at 2. Thus, in the usual instance, a city manager who serves at the will of a mayor and council does not hold an "office." In the situation you pose, that point is made even stronger by the existence of an "Employment Agreement," which provides, in relevant part:

The Acting City Manager shall serve at the pleasure of the Council and nothing in this Agreement shall prevent, limit or otherwise interfere with the right of the Council, or the City Manager, to terminate the services of the City Manager at any time, subject only to applicable provisions of the City personnel policies, and the provisions set forth hereinafter in the section titled "Termination."

Request Letter, supra note 1, at 2 (quoting "Employment Agreement" from city at issue). Because of the referenced "Employment Agreement" between the city council and the acting city manager, who serves "at the pleasure of the Council" and is subject to termination at any time, it is clear that the acting city manager does not hold an "office" under the Aldine standard.

We conclude that, where a city's acting city manager is subject to an employment agreement with the mayor or the city council, the acting city manager is not barred by the common-law doctrine of incompatibility from serving as a member of the governing board of an MTA that includes the city within its service area.

SUMMARY

An acting city manager who is subject to an employment agreement with the mayor or the city council is not barred by the common-law doctrine of incompatibility from serving as a member of the governing board of a metropolitan transit authority that includes the city within its service area.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

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