   OFPlCE OF THE ATTORNEY GENERilL   STATE ot TEXAS
   JOHN    CORNYN




                                            June 3,1999



The Honorable James Warren Smith, Jr.         Opinion No. JC-0061
Frio County Attorney
500 East San Antonio Street, Box 1            Re: Whether a county commissioner may be paid by
Pearsall, Texas 78061-3100                    the county for driving an ambulance for the county
                                              emergency medical services department  (RQ-I 193)


Dear Mr. Smith:

       You ask whether a county commissioner may be paid by the county for driving an ambulance
for the county emergency medical services (“EMS”) department.         We conclude that Local
Government Code section 8 1.002 precludes a county commissioner from receiving such payments.

         You provide the following facts: Drivers for the county EMS department, including the
commissioner at issue, arepaid on a “run-by-run” basis. They receive $10.00 for an “in-county run”
and $40.00 for an “out-of-county run,” and they are also covered by the county’s workers’ com-
pensation program. We understand from your letters that the EMS department is a department of
the county, rather than a separate political entity such as an emergency services district. See, e.g.,
TEX. HEALTH & SAFETYCODE ANN. ch. 776 (Vernon 1992 & Supp. 1999) (providing for emergency
services districts in counties with populations less than 125,000). The county’s EMS director is
hired by the commissioners court. The EMS director supervises the EMS department personnel,
including the ambulance drivers. The commissioners court sets the salary of the EMS director and
the EMS department budget. EMS drivers are paid from funds allocated to the EMS department in
the county budget. Based on the information you have provided, we assume that drivers for the
county EMS department are paid by the county with county funds.

         Although your letter’s description ofthe legal status of ambulance drivers’ relationship with
the county is somewhat ambiguous, baaed on the information you have provided we believe that the
relationship comes closest to an employment contract. While you describe the commissioner as a
volunteer EMS driver, you also inform us that the drivers are paid by the county and supervised by
the county EMS director. Generally, a volunteer is a person who serves with no promise of
remuneration.    See Tex. Att’y Gen. Op. No. DM-409 (1996) at 5-6. That is not the case here. In
addition, we note that a person is an employee, rather than an independent contractor, ifthe employer
has the right to control details of the work. Seegenerally Tex. Att’y Gen. Op. No. JM-525 (1986)
at 4-5. Based on your statements that the work of the EMS drivers is supervised by the EMS
director, it appears that the work of ambulance drivers is controlled by the county and that they are
employees rather than independent contractors.
The Honorable   James Warren Smith, Jr. - Page 2            (JC-0061)




        You ask whether the commissioner is precluded from being compensated by the county as
an EMS driver by the oath of oftice set forth in section 81.002 of the Local Government Code, which
provides in pertinent part:

                     (a) Before undertaking the duties of the county judge or a county
                commissioner,    a person must take the official oath and swear in
                writing that the person will not be interested, directly or indirectly, in
                a contract with or claim against the county except:

                          (1) a contract or claim expressly authorized by law; or

                          (2) a warrant issued to the judge or commissioner    as a fee of
                office.

TEX. LOC. GOV’T CODE ANN. 5 81.002 (Vernon            1988). Section 81.002 states a strict rule against
conflicts ofinterest. It has been partially repealed by Local Government Code chapter 171, see infru,
but prior to the partial repeal, it barred county commissioners from having any interest, no matter
how small, in a contract with the county. See Tex. Att’y Gen. Op. No. H-624 (1975) (county barred
from contracting with a farmers’ cooperative in which one commissioner owned a share). This oath
of office has been construed to extend to employment contracts and thus precludes a commissioners
court from employing its own members. See Starr County v. Guerru, 297 S.W.2d 379, 380 (Tex.
Civ. Ape.-San Antonio 1956, no writ).

        Chapter 171 now permits a commissioners         court to enter into a contract in which a
commissioner is interested if the contract falls within the ambit of that chapter. As this office has
explained

                chapter 171 and section 81.002 may be correctly harmonized by
                reading chapter 171 to authorize a county to enter into contracts or
                take actions in which a member of the commissioners               court is
                pecuniarily     interested  to the same extent that other local
                governmental bodies may take such actions.            Thus, if a county
                commissioner or county judge has a substantial interest in a business
                entity that will be subject to a vote or decision by the commissioners
                court, he must file the affidavit required by section 171.004 and
                abstain from participation in a matter if “action on the matter will
                have a special economic effect on the business entity that
                is distinguishable from the effect on the public.” Local Gov’t Code
                 5 171.004. Ifhis interest in a business entity is less than a substantial
                 interest, the interested member of the commissioners          court may
                participate in an action affecting the business entity. Chapter 171
                 creates an exception in the oath required by section 81.002 to the
                 extent that it permits a county judge or county commissioner to have
The Honorable    James Warren Smith, Jr. - Page 3             (X-0061)




                a direct or indirect interest in a contract with or claim against the
                county.

Tex. Att’y Gen. Op. No. DM-279 (1993) at 4.

        Again, the oath of office provision precludes a commissioners court from employing its own
members because a county employee is “interested, directly or indirectly, in a contract with or claim
against the county.” TEX. Lot. GOV’T CODE ANN. $ 81.02(a) (Vernon 1988); Starr County, 297
S. W.2d at 380. Based on the information you have provided, it appears that ambulance drivers, who
are employed by the county and paid with county funds, have an interest in a contract or claim
against the county.

         We do not believe that chapter 171 repeals the oath of office provision in the circumstances
you describe. Chapter 171 governs public officers interests in “real property,” which is not relevant
here, and “business entities.” See TEX. Lot. GOV’T CODE ANN. 5 171.004 (Vernon Supp. 1999)
(requiring local public official to tile affidavit and abstain from any vote affecting business entity
or real property in which official has “a substantial interest”). Local Government Code section
17 1.001(2) defines the term “business entity” to mean “a sole proprietorship, partnership, firm,
corporation, holding company, joint-stock company, receivership,              trust, or any other entity
recognized by law.” Id. (Vernon 1988). As this office has previously stated, the phrase “other
entity recognized by law” in section 171.001(2) “should be read to refer to private entities organized
in a form authorized or recognized by the legislature to carry out purposes similar to the purposes”
of the listed entities. Tex. Att’y Gen. Op. No. N-852 (1988) at 4. While this office has concluded
that an attorney’s law practice, a sole proprietorship, falls within this definition, see Tex. Att’y Gen.
LO-94-055, at 4, it has never extended this definition to include a person who is not acting in the
capacity of a business or as an independent contractor.         The commissioner, in his capacity as
ambulance driver for the county EMS department, is clearly not operating as a business entity, nor,
you inform us, is he acting as an independent contractor.             The county, like other political
subdivisions, is not itself a business entity within the meaning of chapter 171. See Tex. Att’y Gen.
Op. Nos. DM-267 (1993) (city not “business entity” within meaning of Local Government Code
chapter 171), JM-852 (1988) (state university not “business entity” within meaning of Local
Government Code chapter 171). Again, based on the information you have provided, it appears that
an ambulance driver is a county employee. We do not believe that chapter 171 is intended to permit
employment contracts between members of a governing body and the political subdivision they
govern.’

         In sum, section 81.002 precludes a county commissioner      from having an employment
relationship with the county. Chapter 171 does not repeal the oath of office provision with respect
to employment relationships with the county. We are not aware of any other statutory provision that



         ‘But see 35 DAVIDB. BROOKS,COUNTYANDSPECIALDISTRICTLAW $ 18.37 (Texas Practice 1989)
(suggestingthatdefinitionofbusinessentity”includes“anindividua1 sellingproperty orcontracting inhis ownname”).
The Honorable    James Warren Smith, Jr. - Page 4               (X-0061)




would repeal the section 81.002 in the circumstances at issue here.2 For this reason, we believe that
the county commissioner’s oath of office precludes the commissioner from receiving the payments
you describe.

         You also ask whether the commissioner can avoid the effect of section 81.002 by recusing
himself from any vote affecting the county EMS department. He cannot. The section 8 1.002 oath
of office incorporates the strict common-law prohibition against conflicts of interest. See Bexar
County Y. Wentworth, 378 S.W.2d 126 (Tex. Civ. App.-San Antonio 1964, writ ref d n.r.e.). Under
the common law, a public officer cannot avoid a conflict of interest by recusing himself. Delta Elec.
Constr. Co. v. CityofSanAntonio,437      S.W,2d602,608-09(Tex.       Civ. App.-SanAntonio   1969,writ
ref d n.r.e.). Given that the statutory oath of office incorporates the common law, we conclude that
a public officer cannot avoid a conflict of interest under section 8 1.02 by recusing himself.

         Given our conclusion that Local Government Code section 8 1.002 precludes the arrangement
you describe, we need not address whether the arrangement violates the doctrine of common-law
incompatibility   prohibition against self-employment.   Nor do we address whether workers’
compensation coverage alone would create an interest in a contract or claim against the county in
violation of section 81.002. See generally TEX. LAB. CODE ANN. 5 504.012(a) (Vernon 1996)
(authorizing political subdivision to provide workers’ compensation       for volunteer emergency
medical personnel).




      lFor a discussion of other enactments that repeal section 8 1.002 by implication, see Tex. Att’y Gen. Op. No
DM-279 (1993) at 6.
The Honorable   James Warren Smith, Jr. - Page 5          (X-0061)




                                       SUMMARY

                       Local Government Code section 8 1.002 precludes a county
                commissioner from receiving payments from the county for driving
                an ambulance for the county emergency medical services department.

                                             Yo    s ve    truly,



                                            4cJu
                                              JOkN     CORNYN
                                                                    aJ



                                              Attorney General of Texas
                                                                         T




ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General
