Can a Texas county attorney also volunteer as an ESGR ombudsman for the Guard and Reserve?

TX AG Opinion GA-0460: Can a county attorney volunteer as an ESGR ombudsman?

Plain-English summary

The Wilson County Attorney asked whether he could accept appointment as a volunteer ombudsman for the National Committee for Employer Support of the Guard and Reserve, known as ESGR. ESGR is a Department of Defense program that uses a national network of volunteer ombudsmen to provide information, counseling, and informal mediation of disputes between members of the Guard and Reserve and their civilian employers, mostly involving the federal Uniformed Services Employment and Reemployment Rights Act. ESGR is not an enforcement agency and does not give legal advice.

Two bodies of law were in play, and the Attorney General concluded neither barred the dual service.

First, article XVI, section 12 of the Texas Constitution. It says a person holding a federal "office of profit or trust" cannot also hold a state office. A county attorney is an elected state officer, so the only question was whether a volunteer ESGR ombudsman holds a federal office. The test, from a 1955 Texas Supreme Court decision, is whether a "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." The AG compared two of its own prior opinions: one held that a local selective service board member was not a federal officeholder (because the board's powers only matter if conscription is reinstated, and there is no draft today), while another held that a Texas Supreme Court justice could not sit on the board of the federally funded State Justice Institute (because those board members set policy, issue rules, and distribute federal grant money). The ESGR ombudsman looks like the first example, not the second. By federal law the Secretary of Defense may accept the ombudsman's voluntary services but may not place the volunteer in a policy-making position, and the ombudsman gives no legal advice and has no enforcement authority. So the ombudsman exercises no sovereign government function and does not hold a federal office of profit or trust. Article XVI, section 12 does not apply.

Second, the common-law doctrine of incompatibility, which has three branches: self-appointment, self-employment, and conflicting loyalties. The first two did not apply, because a county attorney and an ESGR ombudsman do not appoint or employ each other. The conflicting-loyalties branch requires that both positions be "offices," and the ombudsman role is not an office, so that branch did not apply either.

The AG concluded that a county attorney is not barred, by the constitution or by incompatibility, from also serving as a volunteer ESGR ombudsman.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG 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.

The constitutional dual-officeholding provision (article XVI, section 12), the federal voluntary-services statute (10 U.S.C. section 1588), and the structure of the ESGR program may have changed since 2006. Anyone weighing whether a specific public official may take on a particular volunteer or federal role today should check current law.

Who this opinion affected (as of 2006)

County attorneys and other state officeholders: The opinion told them that taking an unpaid ESGR ombudsman role did not violate the constitutional bar on holding a federal office of profit or trust, because that volunteer role is not a federal office.

Volunteers and the ESGR program: The opinion explained why the ombudsman position is not a federal office: no legal advice, no enforcement authority, and (by federal law) no policy-making role, so no sovereign government function.

Anyone analyzing dual federal-state service: The opinion is a useful application of the 1955 "sovereign function" test, contrasting a non-office (selective service board member, ESGR ombudsman) with a true federal office (a federally appointed grant-making board member).

Common questions

Can a county attorney serve as an ESGR ombudsman?
The opinion concluded yes. Neither article XVI, section 12 of the Texas Constitution nor the common-law incompatibility doctrine bars a county attorney from also serving as a volunteer ESGR ombudsman.

Why isn't the ombudsman role a federal "office"?
Because, the opinion explained, the ombudsman gives no legal advice, has no enforcement power, and by federal law performs no policy-making function, so he exercises no sovereign government function under the 1955 test from Aldine Independent School District v. Standley.

Does the incompatibility doctrine block it?
No. The opinion found self-appointment and self-employment do not apply (neither role appoints or employs the other), and conflicting-loyalties incompatibility does not apply because the ombudsman position is not an office.

Would the answer change for a paid or policy-making federal role?
The opinion did not decide other roles, but it drew the line at sovereign functions. It noted that a federally appointed board member who sets policy and distributes federal grants (as in the State Justice Institute opinion) does hold a federal office that would conflict.

Background and statutory framework

Article XVI, section 12 of the Texas Constitution bars a person holding a federal office of profit or trust from also holding a state office (Tex. Const. art. XVI, § 12), and a county attorney is an elected state officer (id. art. V, § 21). Whether someone holds a federal office turns on the "sovereign function" test (Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)), which the AG had applied to find a selective service board member was not a federal officeholder (Tex. Att'y Gen. Op. No. GA-0057 (2003)) but a federally appointed grant-making board member was (Tex. Att'y Gen. Op. No. DM-49 (1991)).

Federal law lets the Secretary of Defense accept the ombudsman's voluntary services but not place the volunteer in a policy-making position (10 U.S.C.A. § 1588(a)(3), (b)(3)(A) (West 1998 & Supp. 2006)), so the ombudsman exercises no sovereign function. The common-law incompatibility doctrine has self-appointment, self-employment, and conflicting-loyalties branches, the last requiring both positions to be offices (Tex. Att'y Gen. Op. Nos. GA-0307 (2005), GA-0224 (2004), GA-0032 (2003), GA-0350 (2005), GA-0273 (2004)); because the ombudsman role is not an office, none applied.

Citations

Statutes:

• Tex. Const. art. XVI, § 12; art. V, § 21
• 10 U.S.C.A. § 1588(a)(3), (b)(3)(A) (West 1998 & Supp. 2006)

Cases and prior opinions:

• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)
• Tex. Att'y Gen. Op. Nos. GA-0057 (2003), DM-49 (1991), GA-0307 (2005), GA-0224 (2004), GA-0032 (2003), GA-0350 (2005), GA-0273 (2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0460
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0460.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

September 18, 2006

The Honorable Russell Wilson
Wilson County Attorney
1420 Third Street
Floresville, Texas 78114

Opinion No. GA-0460

Re: Whether a county attorney may accept appointment as a voluntary ombudsman for the National Committee for Employer Support of the Guard and Reserve (RQ-0458-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 of Defense ("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." "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 a national network of over 900 volunteer ombudsmen who help resolve issues between employers and their employees who serve in the National Guard and Reserve." About ESGR, supra note 2; Request Letter, supra 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." "The Ombudsmen Services Program provides information, informal mediation, and referral service to resolve employer conflicts. ESGR is not an enforcement agency and does not offer legal counsel or 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 investigation." Id. Your question implicates both article XVI, section 12 of the Texas Constitution and the common-law doctrine of incompatibility.

Article XVI, section 12 of the 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, § 12; see id. art. V, § 21. The question before us is whether a volunteer ombudsman for ESGR holds an "office of profit or trust, under the United States." Id. art. XVI, § 12.

In 1955 the Texas Supreme Court declared that "the 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). In an opinion issued in 2003, this office said that a member of a local selective service board does not hold an office of trust under the United States "because a local 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, a member of a city council was not barred by article XVI, section 12 from simultaneously serving as a member of a local selective service board. See id. By contrast, a 1991 opinion of this office found that a justice of the 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 a member of that 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, supra note 1, at 2. Federal law states that the Secretary of Defense may accept "[v]oluntary services to be provided for programs providing services to members of the armed forces." 10 U.S.C.A. § 1588(a)(3) (West 1998 & Supp. 2006). The same statute provides that with regard to a person performing voluntary services "the Secretary concerned may not . . . place the person in . . . [a policy-making position]." 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 of the government . . . [that is] largely independent of the control of others." Aldine, 280 S.W.2d at 583. As a result, he does not hold an "office of profit or trust, under the United States" in contravention of article XVI, section 12 of the Texas Constitution, TEX. CONST. art. XVI, § 12.

As to common-law incompatibility, there are three aspects: self-appointment, self-employment, and conflicting loyalties. See Tex. Att'y Gen. Op. Nos. GA-0307 (2005) at 3, GA-0224 (2004) at 2, GA-0032 (2003) at 4. Because a county attorney neither appoints nor employs an ESGR ombudsman, nor does an ESGR ombudsman appoint or employ a county attorney, the first two branches of incompatibility are inapplicable. As to the third aspect--conflicting loyalties--it is well 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 is not an office, conflicting loyalties incompatibility does not bar the simultaneous holding of the 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 of incompatibility from simultaneously serving as a volunteer ombudsman for the ESGR.

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 of the Guard and Reserve.

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

Footnotes

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

2. NAT'L COMM. FOR ESGR, WHAT IS ESGR? [hereinafter About ESGR], available at http://www.esgr.org/aboutESGR.asp (last visited Sept. 5, 2006); see Request Letter, supra note 1, at 1-2.

3. NAT'L COMM. FOR ESGR, ESGR PROGRAM-OMBUDSMEN SERVICES [hereinafter About OSP], available at http://www.esgr.org/employers2/programs.asp?c=ombudsman.html (last visited Sept. 5, 2006).