Can a Texas assistant police chief also serve as the city administrator?

TX AG Opinion GA-0536: Can an assistant police chief moonlight as city administrator?

Plain-English summary

League City's Assistant Chief of Police took a paid leave of absence from the police department to serve as interim City Administrator, with the understanding that he could return to his police job once a permanent administrator was hired. A state senator asked three questions: whether the assistant chief abandoned his civil service position by taking the other job, whether his leave of absence amounted to a resignation or absence without leave that would block his reinstatement, and whether he could hold both posts at once without a conflict or a legal violation.

On the first two questions, the news was favorable to the assistant chief. The premise of the first question was wrong: an assistant chief who is appointed under Local Government Code section 143.014 (the position immediately below the department head) does not have civil service protection at all, so he could not have abandoned a civil service position he never held. On the second, because the assistant chief position is not a civil service position, the leave of absence was governed by city personnel policies, and since he asked for and received an approved leave from the Chief of Police, he did not abandon his duties and was not subject to dismissal for being absent without leave.

The third question is where the problem appeared. Two bodies of law limit holding two government posts. The constitution bars one person from holding more than one civil office of emolument, but that did not apply, because an assistant chief who serves "at the pleasure of" the police chief is an employee, not a public officer under the Texas Supreme Court's test. The common-law incompatibility doctrine has three branches. Self-appointment did not apply (the police chief, not the city administrator, appoints the assistant chief, and the assistant chief does not appoint the administrator). Conflicting loyalties did not apply because it requires both positions to be offices, and the assistant chief did not hold an office. But the self-employment branch, which turns on supervision, did apply. The Chief of Police supervises the Assistant Chief, and the City Administrator supervises the Chief of Police, so the City Administrator has ultimate supervisory authority over the Assistant Chief. Because a leave of absence (especially a paid one) does not completely sever the employment relationship, the person on leave as Assistant Chief would still be subject to the City Administrator's supervision, including over the terms of his own leave. That meant he was effectively supervising himself, which the self-employment doctrine forbids. So he could not simultaneously serve as Assistant Chief of Police and City Administrator.

Currency note

This opinion was issued in 2007. Subsequent court decisions or later AG opinions may have refined the common-law incompatibility doctrine, and the cited Local Government Code civil-service provisions may have been amended. Treat this page as historical context, not current legal advice. Verify current law before relying on the analysis here.

The result turned on the specific reporting structure (City Administrator over Chief of Police over Assistant Chief) and on the assistant chief remaining an employee while on paid leave. A different structure or a complete separation from the police job could change the analysis. Confirm the current statutes and the specific facts before relying on this opinion.

Who this opinion affected (as of 2007)

Assistant police and fire chiefs appointed under section 143.014: The opinion told them they do not hold civil service positions and do not have civil service protection, so taking an approved leave to fill another role is not, by itself, an abandonment of a civil service position or of their duties.

Cities filling administrator or manager roles from within: The opinion warned that the self-employment branch of incompatibility blocks one person from holding two jobs where one supervises the other, and that a paid leave of absence does not break the supervisory relationship.

The City of League City: The opinion concluded the arrangement could not continue as structured, because the City Administrator's supervisory authority over the Assistant Chief made simultaneous service incompatible.

Common questions

Does taking a leave of absence to fill another city job cost an assistant chief his police position?
No, based on this opinion. Because the assistant chief position is not a civil service position and the leave was approved under city personnel policies, the assistant chief did not abandon his duties or any civil service status.

Is an assistant police chief a "public officer"?
Not under this opinion. The assistant chief serves at the pleasure of the police chief, so under the Texas Supreme Court's test he is an employee, not an officer, and the constitutional dual-office ban does not apply.

Then why couldn't he hold both jobs?
The opinion concluded the self-employment branch of common-law incompatibility barred it, because the City Administrator has ultimate supervisory authority over the Assistant Chief of Police, and a paid leave of absence does not sever the employment relationship.

What is "self-employment" incompatibility?
The opinion explained it turns on supervision: a person cannot hold one position that supervises a second position the same person also holds. Here the administrator role supervised the assistant chief role.

Background and statutory framework

League City is a home-rule city whose City Administrator is appointed by the Mayor and confirmed by the Council. The Assistant Chief of Police took a paid leave of absence, approved by the Chief of Police, to serve as interim City Administrator. Section 143.021(b) gives civil service protection to fire fighters and police officers except the department head and persons the department head appoints under sections 143.014 or 143.102 (Tex. Loc. Gov't Code Ann. § 143.021(b) (Vernon 1999)). The Assistant Chief was appointed under section 143.014, which lets the department head appoint the person occupying the authorized position immediately below department head, so he did not have civil service protection and could not have abandoned a civil service position (Tex. Loc. Gov't Code Ann. § 143.014(b) (Vernon 1999)). Because the position is not civil service, the leave of absence was governed by city personnel policies, and since the leave was requested and approved, he did not abandon his duties.

On simultaneous service, the constitution bars holding more than one civil office of emolument (Tex. Const. art. XVI, § 40(a)), but the determining factor distinguishing an officer from an employee is whether a sovereign function is conferred to be exercised largely independent of others' control (Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)). A person immediately below the department head serves "at the pleasure of" the Chief of Police (Tex. Loc. Gov't Code Ann. § 143.014(g) (Vernon 1999)), so the Assistant Chief is not a public officer and does not hold a second office of emolument. The common-law incompatibility doctrine has three aspects: self-appointment, self-employment, and conflicting loyalties. Self-appointment did not apply because the Chief of Police, not the City Administrator, appoints the Assistant Chief (Tex. Loc. Gov't Code Ann. § 143.014(b) (Vernon 1999)), and conflicting loyalties did not apply because it requires both positions to be offices.

The self-employment prong, which ultimately derives from Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928), turns on supervision. The Chief of Police directly supervises the Assistant Chief, and the City Administrator supervises the Chief of Police, so the City Administrator has ultimate supervisory authority over the Assistant Chief. A leave of absence is not a complete separation from employment (Chenault v. Otis Eng'g Corp., 423 S.W.2d 377, 383 (Tex. Civ. App.-Corpus Christi 1967, writ ref'd n.r.e.)), and the leave here was paid, so the Assistant Chief on leave remained subject to the City Administrator's supervision, including over the terms of his own leave. The opinion therefore concluded the self-employment aspect of incompatibility barred him from accepting the office of interim City Administrator while retaining his position as Assistant Chief of Police on leave.

Citations

Constitution and statutes:

• Tex. Const. art. XVI, § 40(a)
• Tex. Loc. Gov't Code Ann. § 143.021(b) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 143.014(b), (g) (Vernon 1999)
• Tex. Loc. Gov't Code Ann. § 143.102 (Vernon 1999)

Cases:

• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)
• Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)
• Chenault v. Otis Eng'g Corp., 423 S.W.2d 377, 383 (Tex. Civ. App.-Corpus Christi 1967, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0536
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0536.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

April 12, 2007

The Honorable Mike Jackson
Chair, Committee on Nominations
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0536

Re: Eligibility of an Assistant Chief of Police of the City of League City to serve as City Administrator (RQ-0539-GA)

Dear Senator Jackson:

You ask several questions about the eligibility of the Assistant Chief of Police of the City of League City (the "City") to serve as City Administrator.

The City is a home-rule city that is governed by an elected city council composed of a mayor and seven council members. See The City of League City, Tex., at http://www.ci.league-city.tx.us/ (last visited Mar. 28, 2007). The City Administrator is appointed by the Mayor, subject to confirmation by the City Council. Id. A brief filed on behalf of the City indicates that the Assistant Chief of Police is serving a temporary appointment as City Administrator. On September 22, 2006, the Assistant Chief of Police filed with the Chief of Police a written request for a leave of absence, with pay, from his position as Assistant Chief of Police, with the "understanding that when the permanent position of City Administrator is filled [he would] be able to return to the police department as the Assistant Chief." The Chief of Police approved this request on the same day. See Reed Memo, supra note 3. The Assistant Chief of Police assumed his duties as interim City Administrator on October 1, 2006.

You ask three questions, which we will answer in turn:

1. Can the Assistant Chief of Police of League City abandon his Civil Service Position and accept another position within the same governmental body while continuing to maintain his Civil Service status?

2. Can the Assistant Chief of Police take a leave of absence to serve as a City Administrator or does this amount to a resignation or absence without leave and prevent him from being reinstated to his position after serving as City Administrator?

3. Can the Assistant Chief of Police serve at the same time as City Administrator or is this a conflict of interest or does it violate the Constitution or State Statutes?

Request Letter, supra note 1, at 1.

Your first question, regarding the Assistant Chief of Police's abandonment of his civil service position, assumes that the Assistant Chief of Police occupies a civil service position in the first instance. Section 143.021(b) of the Local Government Code provides that, "[e]xcept for the department head and a person the department head appoints in accordance with Section 143.014 or 143.102, each fire fighter and police officer is classified as prescribed by this subchapter, and has civil service protection." TEX. LOC. GOV'T CODE ANN. § 143.021(b) (Vernon 1999) (emphasis added). Section 143.014 provides that "the head of a fire or police department . . . may appoint each person occupying an authorized position in the classification immediately below that of department head, as prescribed by this section." Id. § 143.014(b). The brief filed on behalf of the City indicates that the Assistant Chief of Police was appointed on October 24, 2002, in accordance with section 143.014. See Polanco Brief, supra note 2, at 2. An individual appointed under section 143.014 of the Local Government Code does not enjoy civil service protection. TEX. LOC. GOV'T CODE ANN. § 143.021(b) (Vernon 1999). Thus, the Assistant Chief of Police could not have abandoned his civil service position because, as Assistant Chief of Police, he did not occupy a civil service position.

Your second question asks whether the Assistant Chief of Police's leave of absence is tantamount to a resignation or absence without leave so as to preclude his future reinstatement as Assistant Chief of Police. Request Letter, supra note 1, at 1. As we have noted, the Assistant Chief of Police sought and received a leave of absence from the Chief of Police. See Polanco Brief, supra note 2, at 3; see also Reed Memo, supra note 3. Because, as we have determined, the position of Assistant Chief of Police is not a civil service position, a leave of absence therefrom is governed by the personnel policies of the City. "In this regard, all classified Civil Service personnel in the Police Department are regulated by the League City Civil Service Commission; where these rules are silent, the City of League City Personnel Policies apply." See Polanco Brief, supra note 2, at 2-3 (citing section 101.3 of the League City Personnel Policies). Section 108.11 of the Personnel Policies governs absence without leave and provides that such absence "constitutes abandonment of duties which may result in dismissal at the end of the third consecutive working day of absence without leave." Id. at 3. Because the Assistant Chief of Police asked for and received a leave of absence from the Chief of Police, he did not abandon his duties and is not thereby subject to dismissal.

You finally ask whether the Assistant Chief of Police may simultaneously serve as City Administrator. Request Letter, supra note 1, at 1. Both the Texas Constitution and the common-law doctrine of incompatibility place restrictions on dual office holding. We will address both sources of law.

The Texas Constitution prohibits a single individual from simultaneously holding "more than one civil office of emolument." TEX. CONST. art. XVI, § 40(a). It is well established 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). As we have indicated, a person in a non-civil service position immediately below that of the head of a police department "serves at the pleasure of" the Chief of Police. See TEX. LOC. GOV'T CODE ANN. § 143.014(g) (Vernon 1999). As a result, the Assistant Chief of Police is not a "public officer" under the Aldine standard. See Tex. Att'y Gen. Op. Nos. GA-0350 (2005) at 3, GA-0199 (2004) at 2, JM-1266 (1990) at 2. Consequently, the Assistant Chief of Police does not occupy more than one "office of emolument" in contravention of article XVI, section 40.

The common-law doctrine of incompatibility has three aspects: (1) self-appointment; (2) self-employment; and (3) conflicting loyalties. See Tex. Att'y Gen. Op. No. GA-0127 (2003) at 2. "Self-appointment" is not relevant here, because, under the terms of section 143.014 of the Local Government Code, it is the Chief of Police, rather than the City Administrator, who appoints the Assistant Chief of Police. TEX. LOC. GOV'T CODE ANN. § 143.014(b) (Vernon 1999). Neither does the Assistant Chief of Police appoint the City Administrator. "Conflicting loyalties," which derives from a 1927 judicial decision, does not apply unless both positions are "offices." See 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. Because, as we have noted, the Assistant Chief of Police in question does not occupy an office, the "conflicting loyalties" aspect of incompatibility does not bar him from simultaneously serving in both capacities.

The self-employment prong of the incompatibility doctrine, while it ultimately derives from a 1928 case, Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928), was not recognized in Texas law until a 1975 attorney general opinion. That opinion concluded that the "positions of public school teacher for an independent school district and trustee for the same district are legally incompatible and cannot be simultaneously occupied by the same person." Tex. Att'y Gen. LA-114 (1975) at 8. Numerous attorney general opinions since 1975 have addressed "self-employment" incompatibility. See, e.g., Tex. Att'y Gen. Op. No. JC-0371 (2001); Tex. Att'y Gen. LO-97-034, LO-90-045, LO-89-057, LO-89-038.

In Attorney General Opinion JC-0371, this office concluded that a school district trustee was barred by "self-employment" incompatibility from serving as a volunteer, unpaid, part-time history teacher in his district for one period a day for a single semester. See Tex. Att'y Gen. Op. No. JC-0371 (2001) at 6. The opinion emphasized that the key aspect of self-employment incompatibility is supervision. See id. at 3. In the situation you pose, the Chief of Police has direct supervisory authority over the position of Assistant Chief of Police. See Polanco Brief, supra note 2, at 4 (Assistant Chief of Police serves under the direct supervision of the Chief of Police). In turn, the City Administrator has direct supervisory authority over the Chief of Police. Telephone Conversation with Joy Almond, Human Resources Director, City of League City, Texas (Mar. 28, 2007); see also City of League City, Tex., at http://www.ci.league-city.tx.us/ (last visited Mar. 28, 2007) ("The City Administrator is the head of the administrative department of the City and shall have supervision of all administrative officers and employees."). Thus, the City Administrator has ultimate supervisory authority over the position of Assistant Chief of Police.

"A leave of absence is not a complete separation from employment . . . ." Chenault v. Otis Eng'g Corp., 423 S.W.2d 377, 383 (Tex. Civ. App.-Corpus Christi 1967, writ ref'd n.r.e.). Moreover, the grant of a leave of absence approved by the Chief of Police on September 22, 2006, is an approval for a paid leave of absence, as indicated by the request from the Assistant Chief of Police. See Reed Memo, supra note 3. Because the Assistant Chief of Police on approved leave remains subject to the City Administrator's supervision, particularly the compensation and other terms of his leave of absence, the Assistant Chief of Police is barred by the common-law doctrine of incompatibility from accepting the office of interim City Administrator while retaining his position as Assistant Chief of Police under a leave of absence.

SUMMARY

The present City Administrator of the City of League City is on approved leave of absence, with pay, as Assistant Chief of Police of that city. Because the City's Assistant Chief of Police is not a civil service position, such leave of absence was not an abandonment of a civil service position. Also, because the leave of absence was approved in accordance with the relevant personnel policies, he did not abandon his duties as Assistant Chief of Police.

However, because the City Administrator has supervisory authority over the Assistant Chief of Police and a leave of absence does not sever an employment relationship, the Assistant Chief of Police is barred by the self-employment aspect of the common-law doctrine of incompatibility from simultaneously serving as City Administrator.

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 Mike Jackson, Chair, Senate Committee on Nominations, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Oct. 1, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] Brief from Arnold G. Polanco, Ross, Banks, May, Cron & Cavin, P.C., on behalf of the City of League City, to Honorable Greg Abbott, Attorney General of Texas, at 3 (Nov. 1, 2006) (on file with the Opinion Committee) [hereinafter Polanco Brief].

[3] Memo from Chris Reed, Assistant Chief, to Andrew J. Daniel, Chief of Police (Sept. 22, 2006) (on file with the Opinion Committee) (attached to Polanco Brief, supra note 2) [hereinafter Reed Memo].

[4] Brief from Onzelo Markum III, Accreditation Officer, League City Police Department, to Honorable Greg Abbott, Attorney General of Texas, at 2 (Nov. 20, 2006) (on file with the Opinion Committee).