Can one person be both a water district's general manager and a city's city manager in Texas?

Plain-English summary

Balch Springs, a home-rule city, planned to consolidate with a Dallas County water district, and as part of the transition the two entities agreed that one person, the water district's general manager, would also serve as the city's city manager for two years. A state representative asked the Attorney General whether one person holding both jobs would run afoul of the common-law doctrine of incompatibility, the rule that keeps a single person from holding two public positions that clash.

The doctrine has three branches. Self-appointment incompatibility stops a person from holding two offices where one appoints the other. Self-employment incompatibility stops a person from holding an office and a job that the office supervises. Conflicting-loyalties incompatibility stops a person from holding two positions that would keep him from exercising independent judgment, but it applies only when each position is a public "office."

The Attorney General worked through each branch. The water district board hires the general manager and can direct the manager's work, and the city council appoints the city manager. Neither position appoints or supervises the other, so the self-appointment and self-employment branches did not apply. For conflicting loyalties, the question was whether each role is an "office," which depends on whether the person exercises a sovereign function largely independent of others' control. A water district general manager acts subject to the board's control, so the manager is not an officer. A home-rule city manager who is appointed by the council and can be removed at any time with or without cause likewise is not an officer. With neither role an office, the conflicting-loyalties branch did not apply either. So the doctrine did not bar one person from holding both jobs. The opinion took no position on the consolidation itself and pointed the parties to the city charter and ordinances for any separate limits on dual employment.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Water districts and cities planning shared staffing (as the opinion held for them): The opinion told them the common-law doctrine of incompatibility did not stop a water district's general manager from also serving as a home-rule city manager, because neither role is an office and neither appoints or supervises the other.

The individual holding both roles (as the opinion described it): Under the opinion, a general manager whose actions are controlled by the district board, and a city manager removable at will by the council, are employees rather than officers, so the conflicting-loyalties bar did not reach them.

On the limits of the opinion (what the AG did not decide): The opinion expressly declined to opine on the proposed consolidation of the city and the water district, and noted the parties should consult the city charter and ordinances for any restrictions on dual employment.

Common questions

Can the same person be a water district general manager and a city manager?
The opinion concluded the common-law doctrine of incompatibility does not prohibit it.

Why doesn't the incompatibility doctrine apply?
The opinion reasoned that neither position is a public "office," and neither appoints or supervises the other, so none of the doctrine's three branches were triggered.

What makes someone a public "officer" rather than an employee?
The opinion explained that an officer exercises a sovereign government function largely independent of the control of others; a person controlled by a superior body is not an officer.

Did the AG approve the city-district consolidation?
No. The opinion expressly expressed no opinion on the proposed consolidation and addressed only the incompatibility question.

Background and statutory framework

The dual-service question arose from a plan to consolidate Balch Springs with the Dallas County Water Control and Improvement District No. 6 under an Interlocal Cooperation Act agreement. Tex. Gov't Code Ann. §§ 791.001-.034 (West 2004 & Supp. 2010). The common-law doctrine of incompatibility bars dual public service in cases of self-appointment, self-employment, and conflicting loyalties. Self-appointment incompatibility disqualifies an appointing officer from the offices to which the officer may appoint. Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928).

A water district board may employ a general manager and delegate full authority to manage the district subject only to the board's orders. Tex. Water Code Ann. § 49.056(a) (West 2008); Tex. Water Code Ann. § 49.002(a). The conflicting-loyalties branch applies only where each position is an "office," and the distinguishing factor is whether a sovereign function is exercised largely independent of others' control. Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). Because the general manager's actions are subject to the board, the manager does not hold an office. The analysis of whether a city manager is an officer turns on the relevant charter and ordinance provisions, drawing on the treatment of general-law city managers under Local Government Code sections 25.021 and 25.028. Tex. Loc. Gov't Code Ann. §§ 25.021, 25.028. The water district had converted to a municipal utility district in 1981 without changing its name. Tex. Water Code Ann. § 54.030(a) (West 2002).

Citations

Statutes:

• Tex. Gov't Code Ann. §§ 791.001-.034 (West 2004 & Supp. 2010)
• Tex. Water Code Ann. § 49.056(a) (West 2008)
• Tex. Water Code Ann. § 49.002(a)
• Tex. Water Code Ann. § 54.030(a) (West 2002)
• Tex. Loc. Gov't Code Ann. §§ 25.021, 25.028

Cases:

• Ehlinger v. Clark, 8 S.W.2d 666, 674 (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-0849
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0849.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

March 28, 2011

The Honorable Harold V. Dutton, Jr. Opinion No. GA-0849
Chair, Committee on Urban Affairs
Texas House of Representatives Re: Authority of the general manager of a water
Post Office Box 2910 district to serve as city manager of a home-rule
Austin, Texas 78768-2910 city (RQ-0913-GA)

Dear Representative Dutton:

Your predecessor asked whether the general manager of a water district may simultaneously serve as city manager of a home-rule city.[1] This dual office-holding question arises in the context of a plan to consolidate the City of Balch Springs (the "city") with the Dallas County Water Control and Improvement District No. 6 (the "water district").[2] An agreement under the Interlocal Cooperation Act provides that the general manager of the district will also serve as city manager for two years during the consolidation process. See Request Letter, supra note 1, at 1; Interlocal Agreement at 1 (attached to Request Letter); see also TEX. GOV'T CODE ANN. §§ 791.001-.034 (West 2004 & Supp. 2010) (Interlocal Cooperation Act). We have been asked only whether the individual's dual service will violate the common-law doctrine of incompatibility. We express no opinion on the proposed consolidation of the city with the water district.

The common-law doctrine of incompatibility bars dual public service in cases of self-appointment, self-employment, and conflicting loyalties. Tex. Att'y Gen. Op. No. GA-0307 (2005) at 3. Self-appointment incompatibility prevents one person from holding two offices, one of which is appointed by the other. See Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928) ("[A]ll officers who have the appointing power are disqualified for appointment to the offices to which they may appoint."). Self-employment incompatibility prevents one person from holding an office and an employment that the office supervises. Tex. Att'y Gen. Op. No. GA-0766 (2010) at 1. Conflicting loyalties incompatibility "prohibits an individual from simultaneously holding two positions that would prevent him or her from exercising independent and disinterested judgment in either or both positions." Tex. Att'y Gen. Op. No. GA-0169 (2004) at 2.

The board of the water district may employ a general manager and delegate to him "full authority to manage and operate the affairs of the district subject only to orders of the board." TEX. WATER CODE ANN. § 49.056(a) (West 2008); see generally id. § 49.002(a) (stating that Water Code chapter 49 applies to all general and special law districts absent conflict with other Water Code provisions). The city manager of Balch Springs is appointed by the city council and is responsible to the city council for administering city matters. See City Charter, supra note 1, at pt. 1, art. IV, § 4.01 (describing duties of the city manager). Self-appointment incompatibility and self-employment incompatibility do not prohibit dual service as general manager of the water district and city manager. Neither position has authority to appoint or supervise the other.

Conflicting loyalties incompatibility applies only where each position constitutes an "office." Tex. Att'y Gen. Op. Nos. GA-0766 (2010) at 1-2, GA-0538 (2007) at 2, GA-0402 (2006) at 2, GA-0393 (2006) at 3. The determining factor that distinguishes a public officer from a public 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) (citation omitted). Prior opinions from this office have concluded that "a person is not ordinarily an officer if his or her actions are subject to control by a superior body, for in such instance, the person is not exercising authority largely independent of the control of others." Tex. Att'y Gen. Op. No. GA-0766 (2010) at 2, GA-0169 (2004) at 3.

The board of a water district

may employ or contract with a person to perform such services as general manager for the district as the board may from time to time specify. The board may delegate to the general manager full authority to manage and operate the affairs of the district subject only to orders of the board.

TEX. WATER CODE ANN. § 49.056(a) (West 2008). The actions of the general manager of a water district are subject to control by the district board. See id. Accordingly, the general manager does not occupy an "office." Therefore, the conflicting loyalties incompatibility doctrine would not apply in this case.

Your predecessor also asked whether Attorney General Opinion GA-0766, pertaining to the statutory authority by which a city manager of a general-law city was appointed by and served at the will of the municipal government body, could be applied to a home-rule city as well. See Request Letter, supra note 1, at 2; Tex. Att'y Gen. Op. No. GA-0766 (2010) at 2 (quoting Local Government Code sections 25.021 and 25.028). The city manager in that instance did not exercise power "largely independent of the control of others" and accordingly did not hold an office. See id. at 2 (quoting Aldine, 280 S.W.2d at 583). This analysis would apply to determine under the relevant city charter and ordinance provisions whether the city manager of a home-rule city was an officer. See generally Tex. Att'y Gen. Op. No. GA-0362 (2005) at 4-5 (concluding that a home-rule city may adopt a city charter provision that is stricter than the common-law doctrine of incompatibility).

In the City of Balch Springs, for example, the city council appoints the city manager as the chief administrative and executive officer of the city, and he is "responsible to the City Council for the administration of all affairs of the City." City Charter, supra note 1, at pt. 1, art. IV, § 4.01 (describing duties of the city manager). The city manager holds this position at the pleasure of the city council, and his appointment may be terminated at any time with or without cause. See id. § 4.01(3). Thus, he is not an officer. The parties in this case should also consult any restrictions on dual employment included in the city charter or ordinances.

SUMMARY

The general manager of a water district does not occupy an office because his actions are subject to control by the water district board. The common-law doctrine of incompatibility does not prohibit the general manager of a water district from serving as a city manager. The city manager of a home-rule city who is appointed by and subject to termination by the city council is not an officer within the common-law doctrine of incompatibility.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Jason Boatright
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Yvonne Davis, Chair, Committee on Urban Affairs, Texas House of Representatives at 1 (Aug. 26, 2010) (on file with the Opinion Committee, also available at http://www.texasattorneygeneral.gov) [hereinafter Request Letter]. The City of Balch Springs is a home-rule city. See CITY OF BALCH SPRINGS, TEX., CODE OF ORDINANCES, pt. 1 (2008) (Charter Preamble) (available at http://www.cityofbalchsprings.com/links.htm) (last visited Mar. 24, 2011) [hereinafter City Charter].

[2] The water district converted to a municipal utility district in 1981 but did not change its name. See SENATE COMM. ON INTERGOVERNMENTAL RELATIONS, BILL ANALYSIS, Tex. S.B. 461, 72d Leg. (1991) ("Background"); see also TEX. WATER CODE ANN. § 54.030(a) (West 2002) (authorizing water control and improvement district to be converted into a municipal utility district).