                                           GREG        A B B O T T




                                               April 12, 2007


The Honorable James L. Keffer                         Opinion No. GA-0538
Chair, Ways and Means Committee
Texas House of Representatives                        Re: Whether, under the common-law doctrine of
Post Office Box 2910                                  incompatibility, a member of the governing board of
Austin, Texas 78768-291 0                             a metropolitan transit authority may simultaneously
                                                      serve as acting city manager for one of the cities
                                                      within the authority's service area (RQ-0543-GA)

Dear Representative Keffer:

       You ask whether, under the common-law doctrine of incompatibility, a member of the
governing board of a metropolitan transit authority (the "MTA") may simultaneously serve as acting
city manager for one of the cities within the MTA service area.'

        As you state, the common-law doctrine of incompatibility prohibits conflicts that may arise
from holding two public positions. See Request Letter, supra note 1, at 1; Tex. Att'y Gen. Op. No.
GA-0032 (2003) at 4. It has three aspects: (1) self-appointment; (2) self-employment; and (3)
conflicting loyalties. See Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex.
Comm'n App. 1927, judgm't adopted), Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928); Tex. Att'y
Gen. Op. Nos. GA-0468 (2006) at 1-2, GA-0360 (2005) at 4, GA-0273 (2004) at 2, GA-0132 (2003)
at 2. Self-appointment incompatibility is not applicable here: The governing board of the MTA does
not appoint the acting city manager, nor does the acting city manager appoint members of the MTA
governing board. Similarly, self-employment incompatibility does not apply because the MTA
governing board does not supervise the acting city manager, nor does the city manager supervise
members of the MTA governing board.

        The third component of common-law incompatibility-conflicting loyalties-prohibits an
individual from holding two positions in different governmental bodies that may have conflicting
interests. See, e.g., Tex. Att'y Gen. Op. No. GA-0328 (2005) at 2,4. This doctrine derives from a
1927 case in which the court declared:

                        In our opinion the offices of school trustee and alderman are
                 incompatible; for under our system there are in the city council or
                 board of aldermen various directory or supervisory powers exertable


         'Letter from Honorable James L. Keffer, Chair, Ways and Means Committee, Texas House of Representatives,
to Honorable Greg Abbott, Attorney General of Texas (Oct. 18, 2006) (on file with the Opinion Committee, also
available at http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable James L. Keffer      -   Page 2       (GA-053 8)



               in respect to school property located within the city or town and in
               respect to the duties of school trustee performable within its
               limits--e.g., there might well arise a conflict of discretion or duty in
               respect to health, quarantine, sanitary, and fire prevention regulations.
               If the same person could be a school trustee and a member of the city
               council or board of aldermen at the same time, school policies, in
               many important respects, would be subject to direction of the council
               or aldermen instead of to that of the trustees.

Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152,153 (Tex. Comm'n App. 1927,
judgm't adopted) (citation omitted).

        In order for conflicting loyalties to be applicable, both positions must be "offices." See, e.g.,
Tex. Att'y Gen. Op. Nos. GA-0195 (2004) at 1-2, GA-0127 (2003) at 3, JC-0054 (1999) at 2,
JM-1266 (1990) at 4. The standard for determining whether a particular position is an "office" was
articulated by the Texas Supreme Court in 1955:

                [Tlhe determining factor which distinguishes a public officer from an
                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).

        It is well established that, in general, an individual whose actions are subject to the control
of others is not an "officer" under the test of Aldine. See Tex. Att'y Gen. Op. No. JM-1266 (1990)
at 2; see also Tex. Att'y Gen. Op. Nos. GA-0350 (2005) at 3, GA-0199 (2004) at 2. Thus, in the
usual instance, a city manager who serves at the will of a mayor and council does not hold an
"office." In the situation you pose, that point is made even stronger by the existence of an
"Employment Agreement," which provides, in relevant part:

                The Acting City Manager shall serve at the pleasure of the Council
                and nothing in this Agreement shall prevent, limit or otherwise
                interfere with the right of the Council, or the City Manager, to
                terminate the services of the City Manager at any time, subject only
                to applicable provisions of the City personnel policies, and the
                provisions set forth hereinafter in the section titled "Termination."

Request Letter, supra note 1, at 2 (quoting "Employment Agreement" from city at issue). Because
of the referenced "Employment Agreement" between the city council and the acting city manager,
who serves "at the pleasure of the Council" and is subject to termination at any time, it is clear that
the acting city manager does not hold an "office" under the Aldine standard.

        We conclude that, where a city's acting city manager is subject to an employment agreement
with the mayor or the city council, the acting city manager is not barred by the common-law doctrine
of incompatibility from serving as a member ofthe governing board of an MTA that includes the city
within its service area.
The Honorable James L. Keffer - Page 3         (GA-05 3 8)



                                    S U M M A R Y

                     An acting city manager who is subject to an employment
              agreement with the mayor or the city council is not barred by the
              common-law doctrine of incompatibility from serving as a member
              of the governing board of a metropolitan transit authority that
              includes the city within its service area.

                                            Very truly yours,




                                            Attorney &era1      of Texas


KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
