Can a city council remove the person it appointed to a regional water district's board of directors?

Texas AG Opinion JM-1239: Can a City Fire Its Appointee to a Water District Board?

Plain-English summary

A state representative asked whether the city of Garland could remove one of the two representatives it had appointed to the board of directors of the North Texas Municipal Water District. The council had asked one of its representatives to resign, and when he refused, it tried to terminate his appointment and name a successor. He would not give up the seat, arguing the council had no power to remove him. The city argued its charter gave the council that power.

The Attorney General concluded the council could not remove him. The district was created in 1951 by a special law, and that law provides that all of the district's powers are exercised by a board of directors whose members are appointed by each member city's governing body, each serving a two-year term and holding over until a successor is appointed and qualified. The key point is that a member of the district board is an officer of the district, not of the city. He merely happens to be appointed by the city council. The Garland charter's article IV lets the council remove "its appointive officers," but that language refers to officers of the city, so it does not reach a district board seat.

The opinion added a second, independent reason. Even if the representative were treated as a city officer, the same charter provision says a member of any board or commission "shall not be removed, except for incompetency or misconduct in office." The council had not found, or even alleged, incompetency or misconduct. So by the very terms of its own charter, Garland had taken no action that would actually remove its representative from the district board.

Currency note

This opinion was issued in 1990 and turns on the 1951 special law that created the North Texas Municipal Water District and on the Garland city charter as they read then. Special-district enabling laws and city charters can be and are amended. Treat this page as historical context, not current legal advice. Verify current law and the current charter before relying on anything here.

Who this opinion affected (as of 1990)

The city of Garland and its council: The opinion told the council it had no charter authority to remove its appointee to the water district board, and that its attempted termination had no effect.

The North Texas Municipal Water District and its board: The opinion treated district board members as officers of the district, appointed by member cities but not removable at the appointing city's will, which protected the board's continuity.

Member-city appointees to special-district boards generally: The reasoning suggests that a person a city appoints to a separate district's board holds a district office, so the city's ordinary power over its own officers does not automatically include power to remove that person.

Common questions

Could Garland's council just fire the person it put on the water board?
No. The opinion concluded the charter's power to remove the city's appointive officers did not extend to a seat on the district board, because a district board member is an officer of the district rather than of the city.

Does it matter that the city council made the appointment?
Not for removal. The opinion said the representative merely happens to be appointed by the council; that does not convert a district office into a city office subject to the council's removal power.

Was there any way the council's action could have worked?
Even reading the charter in the city's favor, removal of a board or commission member required a finding of incompetency or misconduct in office. The council made no such finding and did not even allege one, so the attempted removal failed on the charter's own terms.

Background and statutory framework

The North Texas Municipal Water District was created in 1951 by special law (Acts 1951, 52d Leg., ch. 62). It originally had ten member cities and by the time of the opinion had eleven. Section 3(a) of that law provides that all powers of the district are exercised by a board of directors, whose members are appointed by majority vote of the governing body of each city in the district, with each director serving a two-year term and holding over until a successor is appointed and qualified. A city of more than 5,000 population, like Garland, is entitled to two members on the board.

The city relied on article IV of its charter. Section 1 vests city powers in the council and lists appointment powers, including appointing members of the zoning board of adjustment, the city plan commission, and all other boards and commissions "serving the City." Section 2 lets the council remove "its appointive officers without notice," but provides that a member of a board or commission "shall not be removed, except for incompetency or misconduct in office." The opinion read section 1 to refer only to officers of the city and concluded a district board member is an officer of the district. On that basis, and on the alternative ground that no incompetency or misconduct was found or alleged, the opinion held Garland lacked authority under its charter to remove its representative from the district board.

Citations

Statutes and other authorities:

• Acts 1951, 52d Leg., ch. 62 (special law creating the North Texas Municipal Water District; § 2 member cities; § 3(a) board of directors, appointment, and terms)
• Charter of the City of Garland, art. IV, §§ 1, 2 (council powers; removal of appointive officers and of board or commission members)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1239
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1239.pdf

Original opinion text

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

November 6, 1990

Honorable George Pierce
Chairman
Urban Affairs Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78768-2910

Opinion No. JM-1239

Re: Authority of a home rule city to replace its appointed representative to the board of directors of a special district (RQ-2132)

Dear Representative Pierce:

You have requested our opinion regarding the authority of the city of Garland to remove one of its appointed representatives to the board of directors of the North Texas Municipal Water District.

The district was created in 1951 by special law. Acts 1951, 52d Leg., ch. 62, at 96. The district originally contained ten member cities, but you indicate that it now consists of eleven. Id. § 2. Section 3(a) provides, "all powers of the District shall be exercised by a board of directors," whose members are "appointed by majority vote of the governing body of each of the cities contained in the District." Section 3(a) also declares, "each director shall serve for his term of office as herein provided, and thereafter until his successor shall be appointed and qualified." Each director serves a two-year term. Id. § 3(a).

Recently, the city council of Garland asked one of its two representatives to resign. When he refused to do so, the council purported to terminate his appointment and named a successor to the position. The original representative, however, continues to refuse to relinquish his position on the board, and contends that the city council is without authority to remove him. The city argues that its charter furnishes the council with sufficient authority to remove the director.[1]

Article IV of the charter of the city of Garland provides, in part:

Sec. 1. Powers of the Council.

All powers of the City and the determination of all matters of policy shall be vested in the Council. Without limitation of the special and general powers granted or delegated to the City by the Constitution, statutes or the Charter, the Council shall have power to:

(A) Appoint the City Manager, City Secretary and City Attorney pursuant to terms and conditions deemed appropriate by the City Council. Appoint the City Judge for a definite term not to exceed one (1) year, provided no Councilmember shall receive any such appointment during or within one (1) year of the expiration of the term for which he shall have been elected;

(B) Establish other administrative departments and distribute the work of divisions;

. . . .

(F) Appoint the members of the Zoning Board of Adjustment, City Plan Commission and all other boards and commissions serving the City;

. . . .

Sec. 2. Removal of appointive officials.

The Council may, upon the affirmative vote of five (5) members, remove its appointive officers without notice. A member of any board or commission shall not be removed except for incompetency or misconduct in office.

Section 2 of article IV authorizes the council to "remove its appointive officers without notice." In our opinion, the city's representative on the board of directors of the North Texas Municipal Water District is not the kind of officer to which the charter refers. Section 1 of article IV specifically refers only to officers of the city. We believe it is clear that a member of the board of directors of the district is an officer of the district, who happens merely to be appointed by the city council.

Even if we were to deem a member of the board of directors an officer of the city, section 2 of article IV provides that "a member of any board or commission shall not be removed, except for incompetency or misconduct in office." The city council has not in this instance made any finding of incompetency or misconduct in office; indeed, it has not even made such an allegation. We must conclude that, by the very terms of its charter, the city of Garland has failed to take any action that would have the effect of removing its representative on the district board of directors.

SUMMARY

The city council of Garland, Texas, lacks authority under its charter to remove its appointive representatives on the board of directors of the North Texas Municipal Water District.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

[1] A city of more than 5,000 population, like Garland, is entitled to two members on the board of directors.