Can a Texas general-law city manager also serve on the local school district's board of trustees?

TX AG Opinion GA-0766: Can a general-law city manager also sit on the local school board?

Plain-English summary

A district attorney asked the Attorney General whether the city manager of a general-law city, under a council-manager form of government, could also serve on the board of trustees of an independent school district whose boundaries take in the city. The request narrowed the question to one branch of the common-law doctrine of incompatibility: conflicting loyalties.

That doctrine recognizes three kinds of conflict from holding two public positions: self-appointment (one office appoints the other), self-employment (one office supervises the other employment), and conflicting loyalties. The first two were off the table here, as the requestor acknowledged, because the school board does not appoint or supervise the city manager and the city manager does not appoint or supervise the school board. That left conflicting loyalties, which prevents one person from simultaneously holding two positions that would keep him from exercising independent, disinterested judgment in either.

The key limit on the conflicting-loyalties branch is that it applies only when both positions are "offices," not mere employment. The decisive test for an office is whether a sovereign function of government is conferred on the person to be exercised largely independent of the control of others. A school board trustee is plainly an officer. But a city manager who is appointed by and serves at the will of the city council is subject to control by a superior body, so the manager is not exercising authority largely independent of others. Following a prior opinion that reached the same conclusion for a home-rule city manager, the opinion held that a general-law city manager likewise does not hold an office. Because one of the two positions is not an office, conflicting-loyalties incompatibility does not bar a general-law city manager from also serving on the school district's board of trustees.

Currency note

This opinion was issued in 2010. 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 Local Government Code provisions on general-law city managers, and the case law on common-law incompatibility, may have developed since 2010. Confirm current law before relying on anything below.

Who this opinion affected (as of 2010)

General-law city managers: The opinion told them that, because they serve at the will of the council and are subject to its control, they do not hold an "office" for incompatibility purposes, so the conflicting-loyalties doctrine did not block them from also holding an office like a school board trusteeship.

School districts and their boards: The opinion described a school board trustee as clearly an officer, but explained that incompatibility's conflicting-loyalties branch needs two offices to apply, which was not the case when the other position was a general-law city manager.

Local officials and prosecutors weighing dual service: The opinion noted it addressed only the conflicting-loyalties branch; the self-appointment and self-employment branches were not implicated because neither position appointed or supervised the other.

Common questions

Does the incompatibility doctrine stop a city manager from being a school board trustee?
On the conflicting-loyalties branch the question raised, no. The opinion concluded a general-law city manager does not hold an office, and that branch applies only between two offices.

Why isn't a city manager an "office holder"?
Because the manager is appointed by and serves at the will of the city council. The opinion reasoned that someone whose actions are subject to control by a superior body is not exercising authority "largely independent of the control of others," which is the test for an office.

Is a school board trustee an officer?
Yes. The opinion treated a school board trustee as clearly an officer for incompatibility analysis.

Did the opinion address other conflict-of-interest rules?
No. It limited itself to the conflicting-loyalties branch of common-law incompatibility, as the request asked. It did not address self-appointment or self-employment incompatibility (which did not apply) or other statutes.

Background and statutory framework

The common-law doctrine of incompatibility prohibits self-appointment, self-employment, and conflicting-loyalties conflicts between two public positions (see Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)). Conflicting-loyalties incompatibility applies only when both positions constitute an "office." The test distinguishing a public officer from a public employee is whether a sovereign function of government is conferred on the person to be exercised largely independent of the control of others (Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)).

A school board trustee is an officer. A city manager in a general-law municipality, however, "is appointed by and serves at the will of the governing body of the municipality" (Tex. Loc. Gov't Code Ann. §§ 25.021, .028 (Vernon 2008)). Because the manager is terminable at will by a superior body that can dictate the manager's actions, the manager does not exercise power largely independent of others and thus does not hold an office (cf. discussion of article XVI, section 40 in prior opinions; Tex. Const. art. XVI, § 40). With only one of the two positions qualifying as an office, conflicting-loyalties incompatibility does not bar a general-law city manager from serving on the school district's board of trustees.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. §§ 25.021, .028 (Vernon 2008)
• Tex. Const. art. XVI, § 40

Cases:

• Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)
• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0766
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0766.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 5, 2010

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

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)

Dear Mr. Alaniz:

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."[1] You ask specifically about whether the conflicting loyalties aspect of the common-law doctrine of incompatibility prevents service in both positions, and we limit our analysis accordingly.

The common-law doctrine of incompatibility recognizes and prohibits three 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 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 similarly prevents one person from holding an office and an employment that the office supervises. Tex. Att'y Gen. Op. No. GA-0199 (2004) at 2. As you recognize, neither self-appointment incompatibility nor self-employment incompatibility apply here because the school district board of trustees 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; cf. Tex. 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 of a metropolitan transit authority).

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. Relevant to your 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 instructor not an officer); GA-0199 (2004) at 2 (city finance director not an officer); 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 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-0169 (2004) at 3.

A member of the board of trustees of an independent school district is clearly an officer for purposes of incompatibility 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 of this office concluded that "in the usual instance, a city manager who serves at the will of a 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 of a city manager in a general-law city, a similar analysis applies here. When general-law municipalities adopt a city manager form of government, "[t]he city manager is appointed by and serves at the will of the governing body of the municipality." TEX. LOC. GOV'T CODE ANN. §§ 25.021, .028 (Vernon 2008).

If a city manager may be "terminated at will by a superior body, he can hardly be said to exercise power 'largely independent of the control of others,' since the superior body 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 city manager of a general-law city does not hold an office as required for conflicting-loyalties incompatibility to apply. As a result, conflicting-loyalties incompatibility will not prohibit the city manager of a general-law city from serving on the board of trustees of an independent school district whose boundaries contain the municipality.

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 conflicting-loyalties incompatibility will not apply to prevent the city manager from also serving on the board of trustees of a school district whose boundaries contain the city manager's municipality.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter at 1 (available at http://www.texasattorneygeneral.gov).]