Can a Texarkana, Texas council member also be a paid firefighter across the line in Arkansas?

Plain-English summary

Texarkana straddles a state line: there is a Texarkana, Texas and a Texarkana, Arkansas, side by side. A Texas state representative asked whether one person could sit on the Texarkana, Texas city council and at the same time hold a paid job as a municipal firefighter for Texarkana, Arkansas. The wrinkle was that Texarkana, Arkansas has pay-parity ordinances tying its firefighters' base pay to Texas firefighters' pay, so a Texas council member's vote on Texas firefighter salaries could ripple across the line and affect Arkansas salaries.

The Attorney General looked at the two legal doctrines the request raised and found neither generally blocked the arrangement. The first was chapter 171 of the Local Government Code, the conflict-of-interest statute, which is triggered when an official has a substantial interest in a "business entity." A city is not a business entity, because it is a public entity whose purpose is not to make money for private people. The earlier opinion on this point involved a Texas city, but nothing suggested an Arkansas city would be treated differently, so chapter 171 did not apply.

The second was the Texas common-law "incompatibility" doctrine. Its self-employment branch, the only one the request asked about, bars a person from holding an office and also a job that the office supervises. The key word is supervision. The Texas city council does not supervise the employees of the Arkansas fire department, and how Texarkana, Arkansas pays its workers is that city's business to decide. Because neither position supervises the other, the self-employment branch did not bar serving in both. The opinion framed this as the general legal principle, noting the cross-state facts raised questions of first impression.

Currency note

This opinion was issued in 2010. 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

The official holding (or considering) both roles (as the opinion held in general terms): The opinion concluded that, as a general principle, neither chapter 171 nor the self-employment branch of the incompatibility doctrine barred a Texarkana, Texas council member from also serving as a paid Texarkana, Arkansas firefighter, because a city is not a "business entity" and neither position supervises the other.

On the conflict-of-interest statute (what the opinion described): The opinion explained that chapter 171 applies when an official has a substantial interest in a "business entity," and that a municipality is a public entity, not a business entity, so the chapter did not apply.

On the cross-state facts (what the opinion flagged): The opinion noted that applying these doctrines to positions in two different states raised issues of first impression that could depend on particular facts, and so it spoke in general terms rather than resolving the specific arrangement.

Common questions

Can one person serve on a Texas city council and also be a paid firefighter in a neighboring city?
The opinion concluded that, generally, nothing in chapter 171 or the self-employment incompatibility doctrine bars it, as long as neither position supervises the other.

Does the conflict-of-interest law (chapter 171) apply because the firefighter works for a city?
The opinion explained that chapter 171 is triggered by a substantial interest in a "business entity," and a city is a public entity, not a business entity, so the statute did not apply.

What is "self-employment incompatibility"?
The opinion explained it is the branch of the common-law incompatibility doctrine that bars a person from holding both an office and a job that the office supervises; the controlling question is supervision.

Did the pay-parity ordinances create a disqualifying conflict?
The opinion did not treat them as decisive. It explained that how Texarkana, Arkansas compensates its employees is that city's decision, and the Texas council does not supervise the Arkansas fire department.

Background and statutory framework

The request raised two doctrines. Chapter 171 of the Local Government Code concerns a local official's conflicts of interest, particularly when the official "has a substantial interest in a business entity." Tex. Loc. Gov't Code Ann. § 171.004(a) (West 2008). The Attorney General's office had determined that a city is not a "business entity" under the chapter, because it is a public entity whose purpose is not to produce financial benefits for private persons. Tex. Att'y Gen. Op. No. DM-267 (1993) at 2 (citing Tex. Loc. Gov't Code Ann. § 171.001(2)); cf. Tex. Att'y Gen. Op. No. GA-0031 (2003) at 2 (school district not a "business entity"). Although that earlier opinion involved a Texas city, nothing suggested an Arkansas city would differ. Cf. Jones v. Am. Home Life Ins. Co., 738 S.W.2d 387, 389 (Ark. 1987) (Arkansas municipalities are creatures of the legislature with only the powers given by statute or the Arkansas Constitution). So chapter 171 did not apply.

The second doctrine was common-law incompatibility, which has three branches: self-appointment, self-employment, and conflicting loyalties. Tex. Att'y Gen. Op. No. GA-0786 (2010) at 1. The request asked only about self-employment, which bars a person from holding both an office and an employment that the office supervises, the "fundamental consideration" being supervision of the subordinate employment by the office. Tex. Att'y Gen. Op. No. GA-0738 (2009) at 2; see also Tex. Att'y Gen. Op. No. GA-0536 (2007) at 4; Tex. Att'y Gen. LO-97-034, at 1. Because the Texas city council does not supervise the Arkansas fire department's employees, and how that city pays its workers is its own decision, the self-employment branch did not apply. As a general principle, that branch does not preclude holding two positions when neither directly or ultimately supervises the other. Tex. Att'y Gen. Op. Nos. GA-0786 (2010) at 2; GA-0766 (2010) at 1; GA-0688 (2009) at 1.

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. § 171.004(a) (West 2008)
• Tex. Loc. Gov't Code Ann. § 171.001(2)

Cases:

• Jones v. Am. Home Life Ins. Co., 738 S.W.2d 387, 389 (Ark. 1987)

AG opinions referenced:

• Tex. Att'y Gen. Op. No. DM-267 (1993)
• Tex. Att'y Gen. Op. No. GA-0031 (2003)
• Tex. Att'y Gen. Op. No. GA-0786 (2010)
• Tex. Att'y Gen. Op. No. GA-0738 (2009)
• Tex. Att'y Gen. Op. No. GA-0536 (2007)
• Tex. Att'y Gen. LO-97-034
• Tex. Att'y Gen. Op. No. GA-0766 (2010)
• Tex. Att'y Gen. Op. No. GA-0688 (2009)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0826
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0826.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

December 1, 2010

The Honorable Chuck Hopson Opinion No. GA-0826
Chair, Committee on General Investigating
and Ethics Re: Whether a member of the city council of
Texas House of Representatives Texarkana, Texas, may simultaneously serve as a
Post Office Box 2910 paid municipal fire fighter in Texarkana, Arkansas
Austin, Texas 78768-2910 (RQ-0892-GA)

Dear Representative Hopson:

You ask whether a member of the city council of Texarkana, Texas, may simultaneously serve as a paid municipal fire fighter in Texarkana, Arkansas.[1] You inform us that Texarkana, Arkansas has several ordinances which, in general, are intended to achieve base pay parity between Texarkana, Arkansas, and Texarkana, Texas fire fighters. Request Letter at 1-2. A concern has been expressed that, because of these ordinances, a Texarkana, Texas city council member's vote on the salaries of its fire fighters might affect the salaries of Texarkana, Arkansas fire fighters. Id. at 2.

You ask specifically whether a person may hold both positions in light of the statutory conflict of interest provisions in chapter 171 of the Local Government Code and the self-employment aspect of the Texas common-law incompatibility doctrine. Id. at 1-2. Determining whether these legal principles apply to a person holding positions with municipalities in different states raises issues of first impression which, in part, may depend on the particular facts concerning the positions. However, while you have not elaborated about the position of the Texarkana, Arkansas fire fighter, we will address applicable legal principles in general terms.

You first ask that we address the applicability of the conflict of interest provisions in chapter 171 of the Local Government Code, but only if we conclude that Texarkana, Arkansas, is a "business entity" under that chapter. Request Letter at 2. The chapter concerns a local public official's conflicts of interest in various circumstances, particularly when the official "has a substantial interest in a business entity." TEX. LOC. GOV'T CODE ANN. § 171.004(a) (West 2008). This office has determined that a city is not a "business entity" under the chapter because it is a public entity, not a private entity, and a city's purpose is not to produce financial benefits for private persons. See Tex. Att'y Gen. Op. No. DM-267 (1993) at 2 (citing section 171.001(2) of the Local Government Code) (defining "business entity" for purpose of the chapter); cf. Tex. Att'y Gen. Op. No. GA-0031 (2003) at 2 (determining for similar reasons that a school district is not a "business entity" under chapter 171). While Texas Attorney General Opinion DM-267 specifically concerned a Texas city, you have not provided any information that would indicate that the status of an Arkansas city would be different. Cf. Jones v. Am. Home Life Ins. Co., 738 S.W.2d 387, 389 (Ark. 1987) (stating that Arkansas "[m]unicipalities are creatures of the legislature and as such have only the power bestowed upon them by statute or the Arkansas Constitution"). Because it does not appear that an Arkansas city is a "business entity" under chapter 171 of the Local Government Code, we do not consider the chapter further.

Next, we consider the common-law doctrine of incompatibility, which has three aspects—self-appointment, self-employment, and conflicting loyalties incompatibility. See Tex. Att'y Gen. Op. No. GA-0786 (2010) at 1. You ask only about self-employment incompatibility. The self-employment aspect of the doctrine prohibits a person from holding both an office and an employment that the office supervises. Tex. Att'y Gen. Op. No. GA-0738 (2009) at 2. As we recently observed, "[t]he fundamental consideration under the self-employment aspect is the supervision of the subordinate employment by the office." Id.; see also Tex. Att'y Gen. Op. No. GA-0536 (2007) at 4 (stating that "the key aspect of self-employment incompatibility is supervision"); Tex. Att'y Gen. LO-97-034, at 1 (self-employment incompatibility precludes a city commissioner from serving in the same city's fire department because the commissioner "is in the direct chain of supervision over a member of the fire department"). While you inform us about the potential effects of Arkansas municipal pay-parity ordinances, how Texarkana, Arkansas compensates its employees is a matter for that city to decide. You do not suggest that the Texas city council supervises employees of the Arkansas municipal fire department. As a general principle, the self-employment aspect of the Texas common-law doctrine of incompatibility does not apply to preclude a person from serving simultaneously in two positions when neither position directly or ultimately supervises the other. See, e.g., Tex. Att'y Gen. Op. Nos. GA-0786 (2010) at 2 (self-employment incompatibility inapplicable to positions of special utility district board member and college trustee), GA-0766 (2010) at 1 (self-employment incompatibility inapplicable to positions of school district trustee and city manager), GA-0688 (2009) at 1 (self-employment incompatibility inapplicable to positions of independent school district police chief and city council member).

SUMMARY

Generally, a municipality is not a "business entity" for purposes of the conflict of interest provisions of chapter 171 of the Texas Local Government Code. The self-employment aspect of the Texas common-law incompatibility doctrine does not apply to preclude a person from serving simultaneously in two positions when neither position supervises the other.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

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