Can a volunteer firefighter also serve on the city council in Texas?

Plain-English summary

The Upshur County criminal district attorney asked whether a person could serve at the same time as a member of the Gilmer city council and as a member of the Gilmer Volunteer Fire Department. The Attorney General said no.

A volunteer firefighter does not hold an "office" under the Texas Constitution, so the usual constitutional bar on holding two civil offices did not apply, and neither did the "conflicting loyalties" branch of the incompatibility doctrine (which depends on both positions being offices). The deciding factor was the "self-employment" branch of the common-law incompatibility doctrine, which prevents one person from holding two positions when one is answerable, directly or ultimately, to the other.

What made Gilmer different from an earlier opinion involving the City of Hudson was the charter. In Hudson, the volunteer fire department had been a genuinely independent organization the city did not control. In Gilmer, the charter created the fire department, housed it on city property, and made the fire chief answerable to the council, which had to approve the chief. On top of that, the Gilmer firefighters were not truly unpaid: each received $4.00 per fire and $4.00 per drill plus a city contribution to a firefighters' relief and retirement fund. The opinion treated those stipends as compensation that supported the charter's own label of the firefighters as "employees." Because the fire department answered to the council and the firefighters were paid city employees, one person could not hold both posts. And under a specific charter provision, a city employee who is elected to public office immediately forfeits the city position, so election to the council operated as an automatic (ipso facto) resignation from the fire department.

Currency note

This opinion was issued in 2000. 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.

Background and statutory framework

Texas recognizes a common-law doctrine of incompatibility with three branches: self-appointment, self-employment, and conflicting loyalties. Any one of them can bar a person from holding two positions at once. The opinion ruled out two of them at the start. Self-appointment did not apply because the fire chief, with the city manager's approval, appointed the department's members, not the council. Conflicting loyalties did not apply because a volunteer firefighter does not hold an "office" under article XVI, section 40 of the Texas Constitution, and that branch requires two offices.

That left self-employment incompatibility, first recognized in Texas in a 1977 letter advisory that barred a public school teacher from serving on the board of trustees of the district that employed her. The doctrine bars holding two positions where one is answerable, immediately or ultimately, to the other. The opinion contrasted an earlier letter opinion involving the City of Hudson, where the volunteer fire department was independent of the city, with the Gilmer setup. The Gilmer City Charter (article 4, sections 4.05 and 4.05.1) created the fire department, made the fire chief the department's chief administrative officer "fully responsible to the council," and required council approval of the chief. The charter called the firefighters "employees" and let the chief appoint and remove them with the city manager's approval.

The opinion addressed the obvious objection: aren't volunteers, by definition, unpaid? It pointed to the firefighters' $4.00-per-fire and $4.00-per-drill payments and the city's retirement-fund contributions, and noted that even token payments have been treated as an "emolument" for constitutional purposes, citing Willis v. Potts, which supported treating the Gilmer firefighters as employees rather than pure volunteers.

On the resignation question, the opinion explained that accepting a second office ordinarily works as an automatic resignation from the first, but that rule does not apply when one position is merely employment. Here the charter supplied its own answer: article 3, section 3.02 provides that a city employee elected to a public office immediately forfeits the city position. So a Gilmer firefighter elected to the council automatically gave up the fire-department post.

Common questions

Why couldn't a Gilmer volunteer firefighter also be on the city council?
Because of self-employment incompatibility. The fire department answered to the council, and the firefighters were paid city employees, so one person holding both positions would have one role answerable to the other.

Isn't a volunteer firefighter unpaid, so not an employee?
Not in Gilmer. The opinion noted the firefighters received $4.00 per fire, $4.00 per drill, and a city retirement-fund contribution. It treated those payments as compensation and, citing Willis v. Potts, noted even token payments can count, supporting the charter's "employee" label.

Did the firefighter hold a public "office"?
No. The opinion said a volunteer firefighter does not hold an office under article XVI, section 40 of the Texas Constitution, which is why the conflicting-loyalties branch and the constitutional dual-office bar did not apply.

Why did the Gilmer answer differ from the earlier Hudson opinion?
Because Hudson's volunteer fire department was a truly independent organization the city did not control, while Gilmer's department was created by the charter, housed on city property, and led by a chief who answered to and had to be approved by the council.

What happened when a firefighter was elected to the council?
Under the Gilmer City Charter's article 3, section 3.02, a city employee elected to public office immediately forfeits the city position. The opinion concluded that election to the council operated as an ipso facto resignation from the volunteer fire department.

Citations

Constitutional and charter provisions: Tex. Const. art. XVI, § 40; Gilmer City Charter art. 4, §§ 4.05 and 4.05.1 (1997); Gilmer City Charter art. 3, § 3.02 (1997).

Case: Willis v. Potts, 377 S.W.2d 622 (Tex. 1964).

Prior Attorney General opinions and letter opinions referenced: LO-94-046, LO-88-085, JM-1266 (1990), LO-96-148, LO-95-052, LO-95-029, LO-93-027, Letter Advisory No. 114 / LA-114 (1977), DM-156 (1992), DM-55 (1991), JM-203 (1984), LO-94-070, LO-98-036, JM-704 (1987), JM-594 (1986), LO-97-100, LO-93-033, LO-89-057.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0199
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0199.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

March 21, 2000

The Honorable Tim Cone
Criminal District Attorney
Upshur County Justice Center
405 North Titus Street
Gilmer, Texas 75644

Opinion No. JC-0199

Re: Whether a member of the Gilmer Volunteer Fire Department may simultaneously serve on a city council (RQ-0131-JC)

Dear Mr. Cone:

You have requested our opinion as to whether a member of the city council of the City of Gilmer (the "city") may simultaneously serve as a member of the Gilmer Volunteer Fire Department (the "department"). For the reasons set forth below, we conclude that he may not do so.

A volunteer fire fighter does not hold an "office" under article XVI, section 40 of the Texas Constitution. Tex. Att'y Gen. LO-94-046, at 2-3; LO-88-085, at 1. Thus, the question before us is whether the common-law doctrine of incompatibility prohibits an individual from simultaneously holding the positions of city council member and volunteer fire fighter. The three aspects of incompatibility are self-appointment, self-employment, and conflicting loyalties, any one of which is sufficient to bar an individual from serving in two positions at the same time. See Tex. Att'y Gen. Op. No. JM-1266 (1990). Self-appointment is not applicable because, according to the city charter, the fire chief, with the approval of the city manager, appoints the members of the volunteer fire department. Neither does the conflicting loyalties aspect apply in this case, since the position of volunteer fire fighter is not an "office." See id.; see also Tex. Att'y Gen. LO-96-148, at 2; LO-95-052; LO-95-029, at 3; LO-93-027, at 2.

The situation you present may, however, implicate self-employment incompatibility, which bars an individual from holding two positions, one of which is answerable, immediately or ultimately, to the other. This doctrine was first recognized in Texas in 1977. In Letter Advisory No. 114 (1977), this office concluded that a public school teacher was not eligible to serve on the board of trustees of the district in which she was employed as a teacher. Tex. Att'y Gen. LA-114 (1977). See also Tex. Att'y Gen. Op. Nos. DM-156 (1992); DM-55 (1991); JM-203 (1984). In Attorney General Letter Opinion 94-070, however, this office, in concluding that a member of the City Council of the City of Hudson was not precluded from simultaneously serving as a member of the Hudson Volunteer Fire Department, declined to apply self-employment incompatibility to a situation involving a volunteer fire fighter. In that instance, the opinion noted, the City of Hudson did not control the fire department or determine the duties of the volunteer fire fighters. Tex. Att'y Gen. LO-94-070, at 2.

Unlike the circumstances in Letter Opinion 94-070, the city charter of Gilmer creates a "Fire Department for the City of Gilmer, to be maintained by the Gilmer Volunteer Fire Department for the protection of the City." GILMER CITY CHARTER art. 4, §§ 4.05, 4.05.1 (1997). A fire chief, elected by the members of the department, must be "approved or denied by the City Council." Id. The fire chief is the chief administrative officer of the department and is fully responsible to the council for its administration and for enforcing the resolutions and ordinances of the city council. Id. The chief, with the approval of the city manager, appoints and removes the "employees" of the department. Id. (emphasis added). Whereas the Hudson Volunteer Fire Department appears to have been a truly independent organization, the department in Gilmer is clearly under the control of the city, is housed on city property, and is led by a chief who must be approved by the city council.

It might be argued that a volunteer fire fighter, as in Letter Opinion 94-070, is a mere "volunteer," and hence not subject to self-employment incompatibility. In Attorney General Letter Opinion 98-036, this office said that a member of a university board of regents was permitted to serve simultaneously as a volunteer coach for the football team. Tex. Att'y Gen. LO-98-036. Thus, there might appear to be a conflict between the city charter's characterization of the Gilmer fire fighters as "employees" and their status as "volunteers." But the fire fighters of Gilmer are not truly "unpaid." Each of them is compensated at the rate of $4.00 per fire and $4.00 per drill, and receives an annual contribution from the city to the Fire Fighters Relief and Retirement Fund. See Letter from Michael D. Martin, Gilmer City Attorney, to Honorable Tim Cone, Upshur County Criminal District Attorney, at 2 (May 14, 1999) (on file with Opinion Committee). Even such token payments have been held to constitute an "emolument" for purposes of article XVI, section 40 of the Texas Constitution. See Willis v. Potts, 377 S.W.2d 622 (Tex. 1964); Tex. Att'y Gen. Op. Nos. JM-704 (1987); JM-594 (1986); Tex. Att'y Gen. LO-97-100; LO-93-033. Likewise, we think that such payments support the charter's description of volunteer fire fighters as "employees."

You also ask whether the city council member in question, by taking the oath for that office, automatically resigned his position with the volunteer fire department. Ordinarily, qualification for and acceptance of a second office operates as an ipso facto resignation from the first office. This office has said, however, that automatic relinquishment does not apply when one of the positions is a mere employment. Tex. Att'y Gen. LO-89-057. In the present instance, the Gilmer City Charter, rather than any resign-to-run provision, furnishes the answer. It provides: "If a member of the Council, a member of any Board or Commission appointed by the Council, or any appointive officer or employee of the City is elected or appointed to any publicly elected office, other than re-election to the same position on the City Council, they shall immediately forfeit their place, position, or employment with the City. . . ." GILMER CITY CHARTER art. 3, § 3.02 (1997). Thus, under the terms of the Gilmer City Charter, if a volunteer fire fighter, as an "employee" of the city, is elected to the city council, he ipso facto resigns his position with the volunteer fire department.

SUMMARY

Under the terms of the charter of the City of Gilmer, a member of the Gilmer Volunteer Fire Department is barred by common-law incompatibility from simultaneously serving as a member of the city council. Election to the Gilmer City Council operates as ipso facto resignation from the volunteer fire department.

Very truly yours,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee