Double Trouble: When School Board Trustees Hold More Than One Public Office

Transcription

1 Double Trouble: When School Board Trustees Hold More Than One Public Office I would like to be the new sheriff in town, but I am currently a school board trustee. May I hold both public offices simultaneously? When the candidate filing deadline for election approaches, you, like many others, may have similar thoughts. Unfortunately, the answer is rarely a simple yes or no. In some cases, the Texas Constitution, a statute, the attorney general, or a court has specifically considered whether it is permissible for one person to hold the two public offices in question. In other cases, the answer requires analysis of several legal authorities. Drawing from these sources, this article addresses some of the situations that school board trustees may face when trying to hold more than one public office or position simultaneously. Where should a potential candidate start? The first issue that a potential candidate must address is whether the Texas Constitution requires resignation from a current position in order to be a candidate for another position. The relevant provision, known as the resign to run provision, states that specified state, county, and local officers who have over a year and 30 days left in their current term of office cannot become a candidate, in any General, Special or Primary Election, for any office of profit or trust The provision further states that the penalty for not observing this rule is an automatic resignation. The public offices affected by the resign to run provision are listed below: 2 Assessors and Collectors of Taxes Constables County Attorneys County Clerks County Commissioners County Judges 1 Tex. Const. art. XVI, 65(b). 2 Tex. Const. art. XVI, 65(a). 1

2 Page 3 County Surveyors County Treasurers Criminal District Attorneys District Attorneys District Clerks Judges of County Courts at Law, County Criminal Courts, County Probate Courts and County Domestic Relations Courts Justices of the Peace Public Weighers Sheriffs A trustee of an independent school district is not one of the specified public officers to whom this law applies. So, under the Texas Constitution, a school board trustee is not required to resign from his or her current office to be a candidate for another office. On the other hand, because a school board trustee is an office of trust under Texas law, a person holding an affected office listed above with more than a year and 30 days remaining in his or her term automatically resigns that office upon becoming a candidate for school board trustee. 3 In addition to the Texas Constitution, state law regarding a specific public office may affect whether a sitting school board member may run for the office while continuing to serve on the school board. For example, Texas Education Code section 7.103(a) provides, A person is not eligible for election to or service on the [State Board of Education] if the person holds an office with this state or any political subdivision of this state. According to the attorney general, this means that a school board member must resign from the school board prior to the date of the general election for the place on the SBOE. Op. Tex. Att y Gen. No. WW-165 (1957). If the resign to run provision does not apply, a person may run for a second public office while continuing to hold the first. A question arises, however, as to whether the person may legally accept the second office, if elected. When may a candidate legally accept a second office? Two tests must be satisfied before a person may legally hold more than one public office. The first test arises from the Texas Constitution, and the second test is known as the common-law doctrine of incompatibility. 3 Ramirez v. Flores, 505 S.W.2d 406, 409 (Tex. Civ. App. San Antonio 1973, writ ref d n.r.e.). 3

3 Page 4 First Test: Texas Constitution The Texas Constitution states, No person shall hold or exercise at the same time, more than one civil office of emolument School Board Trustees A civil office of emolument is a position in which the public official receives a pecuniary profit, gain, or advantage for the official s service. 5 Examples of emoluments include a set per diem for attending each meeting, reimbursement of expenses, or another type of compensation or benefit. 6 Because the Texas Education Code mandates that school board trustees serve without compensation, the provision on civil offices of emolument does not apply to the office of school board trustee. 7 Therefore, the Texas Constitution would not bar a school board trustee from holding another elected office. 2. School District Employees Texas Constitution, article XVI, section 40(b) also gives guidance to school employees seeking public office: State employees or other individuals who receive all or part of their compensation either directly or indirectly from funds of the State of Texas and who are not State officers, shall not be barred from serving as members of the governing bodies of school districts, cities, towns, or other local governmental districts. Such State employees or other individuals may not receive a salary for serving as members of such governing bodies In 2001, the Texas Legislature amended Section 40(b) to allow certain individuals to receive a salary for holding public office. The amendment states, a schoolteacher, retired schoolteacher, or retired school administrator may receive compensation for serving as a member of a governing body of a school district, city, town, or local governmental district, including a water district created under Section 59, Article XVI, or Section 52, Article III. 9 An instructor or professor employed by a school district is not considered a schoolteacher under the provision Tex. Const. art. XVI, 40(a). 5 Irwin v. State, 177 S.W.2d 970; Op. Tex. Att y Gen. Nos. GA-32 (2003), JC-490 (2002). 6 Op. Tex. Att y Gen. JM-594 (1986); Willis v. Potts, 377 S.W.2d 622 (Tex. 1964); Op. Tex. Att y Gen. JM-704 (1987); Tex. Att y Gen. LO (1993). 7 Tex. Educ. Code (d). 8 Tex. Const. art. XVI, 40(b). 9 Tex. Const. art. XVI, 40(b)(1). 10 Op. Tex. Att y Gen. No. JC-577 (2002). 4

4 Page 5 Second Test: Common-Law Doctrine of Incompatibility The common-law doctrine of incompatibility bars a person from holding more than one public office if the offices conflict with each other. 11 This doctrine is generally of greater concern to school board trustees interested in holding more than one public office. It is premised upon the desire to protect the integrity of state and local governments by promoting impartial service by local officials. 12 Three types of common-law incompatibility exist: 1. Self-appointment The doctrine is implicated when incompatibility exists by virtue of being both a member of a body making the appointment and an appointee of that body. 13 According to the Texas Supreme Court, all officers who have the appointing power are disqualified for appointment to the offices to which they may appoint. 14 In other words, one cannot hold two separate positions in which one is subordinate and accountable to the other Self-employment An office and an employment may be incompatible if the office has the power to appoint or supervise the employee, or if the duties of the positions and the relationship between them create a significant risk that one will impose its policies on the other. 16 The best example of self-employment incompatibility is a person serving as both a teacher and a school board trustee in the same district Conflicting loyalties Incompatibility exists if the duties of two offices are or may be inconsistent or in conflict; however, conflicting loyalties do not exist if the duties are completely unrelated, in no manner inconsistent, and never in conflict. 18 Conflicting loyalties have been found only in situations involving two offices rather than an office and an employment. In addressing whether a school trustee could serve as an umpire at school 11 Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W.152 (Tex. Comm n App. 1927, judgm t adopted); Op. Tex. Att y Gen. No. JM-129 (1984). 12 Tex. Att y Gen. LO (1995). 13 Tex. Att y Gen. LO (1995). 14 Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928). See also Op. Tex. Att y Gen. JM-934 (1988). 15 Tex. Att y Gen. LO (citing Turner v. Trinity Indep. Sch. Dist., 700 S.W.2d 1 (Tex. App. Houston [14th Dist.] 1983, no writ); Op. Tex. Att y Gen. Nos. JM-934 (1988), C-452 (1965); Tex. Att y Gen. LA-114 (1975). 16 Tex. Att y Gen. LO (1995). 17 Tex. Att y Gen. LA-114 (1975). But see Op. Tex. Att y Gen. No. DM-55 (1991) (concluding that a teacher may teach in one district and serve on the board of another if the teacher is otherwise qualified to serve on the board). 18 Tex. Att y Gen. LO (1995). 5

5 Page 6 district baseball games, the attorney general set forth the test for determining whether a person holds a public office: [T]he 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. 19 The attorney general also considered the conflicting loyalties incompatibility doctrine in determining whether the police chief of an independent school district could serve as a city council member of a city located within the geographical boundaries of the district. Because the school district police chief s actions were subject to the control of the trustees and the superintendent, the attorney general concluded that the police chief was an employee of the district rather than an officer. As such, the attorney general opined that the police chief s position was not an office to which the conflicting loyalties incompatibility doctrine applied. 20 The doctrine of conflicting loyalties is generally present when one governmental body has the authority to impose its will on the other. 21 What does the attorney general say? The attorney general has specifically addressed many instances of dual office-holding. Several opinions, as well as relevant statutes, are set forth in the chart below. Even if the attorney general has addressed the situation previously, it is advisable to review the specific opinion in order to ensure that the facts and circumstances are sufficiently similar, particularly when the attorney general s opinion is not very current. Even if the exact situation has not been addressed, the reasoning in previous opinions can help predict whether a dual-office situation would be allowed. Some general rules can be gleaned from the attorney general s opinions: 1. Two offices are likely incompatible if the jurisdictional boundaries of the governing bodies overlap, 22 especially if both bodies have taxing authority Op. Tex. Att y Gen. No. GA-127 (2003) (quoting Aldine Indep. Sch. Dist., 280 S.W.2d 578, 583 (Tex. 1955)). 20 Op. Tex. Att y Gen. No. GA-688 (2009). 21 Tex. Att y Gen. LO (1998). 22 Op. Tex. Att y Gen. No. GA-224 (2004) (offices of school board trustee and water improvement district board member); Tex. Att y Gen. LO (1992) (citing Op. Tex. Att y Gen. Nos. JM-634 (1987) (offices of city alderman and school district trustee); JM-133 (1984) (offices of county auditor and city council member); JM- 129 (1984) (offices of community college trustee and county commissioner)). 23 Op. Tex. Att y Gen. No. JM-1266 (1990). 6

6 Page 7 2. Two offices are likely incompatible if a contract exists between the two governing bodies. 24 If two offices are incompatible, a person is deemed to have relinquished the first office upon qualifying for and accepting the second. 25 When faced with a dual office-holding question, a prospective candidate should consult his or her personal attorney or at See Tex. Att y Gen. LO (1992) (concluding that one person may not simultaneously hold the position of county tax assessor-collector and school board trustee if the school district contracts with the county to assess and collect its taxes). 25 Pruitt v. Glen Rose Indep. Sch. Dist. No. 1, 84 S.W.2d 1004, 1006 (Tex. Comm n App. 1935, judgm t adopted); Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W.152 (Tex. Comm n App. 1927, judgm t adopted); Op. Tex. Att y Gen. Nos. JM-634 (1987), JM-133 (1984); Tex. Att y Gen. LO (1992). 7

7 Page 8 Authorities on Holding the Office of School Board Trustee and Another Position School Board Trustee and... The Authority Says... Appraisal District Board of Directors Both offices may be held pursuant to Texas Tax Code. 26 Appraisal District Review Board The office is incompatible with the office of junior college trustee if the boundaries of each district overlap. 27 City Alderman or Council Member Both offices may NOT be held; they are incompatible. 28 City Manager Both positions may be held when city manager is not an officer. 29 Constable Both offices may be held. 30 County Attorney Both offices may NOT be held; they are incompatible. 31 County Clerk Both offices may be held. 32 County Commissioner Both offices may NOT be held; they are incompatible. 33 County Court at Law Judge Both offices may NOT be held; they are incompatible Tex. Tax Code 6.03(a). 27 See Tex. Att y Gen. LO (1992) (finding that the decisions of the appraisal district review board affect the appraised value of property on which each taxing unit imposes ad valorem taxes; thus, the offices are incompatible if the boundaries of each district overlap.) This reasoning would apply equally to a school board trustee if the district s boundaries overlap those of the appraisal district review board. 28 Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W.152 (Tex. Comm n App. 1927, judgm t adopted); Op. Tex. Att y Gen. No. JM-634 (1987); Tex. Att y Gen. LO (1993), LO (1992), LO (1990) (regarding trustees of a county-wide junior college district). But see Tex. Att y Gen. LA-149 (1977) (finding office of junior college trustee is not incompatible with position on city council of city in junior college district where none of the junior college district s property or activities were within the territorial jurisdiction of the city and there was no relationship between the city and the college). 29 Op. Tex. Att y Gen. GA-766 (2010). 30 See Op. Tex. Att y Gen. Nos. JM-519 (1986)(concluding that the offices are not incompatible, but the resign to run provision will apply if the constable announces his or her candidacy for the office of school trustee when the unexpired term as constable exceeds one year; and he or she will automatically resign the office of constable). 31 See Tex. Att y Gen. LO (1995) (concluding that because the county attorney is constitutionally and statutorily vested with the authority to investigate matters and institute proceedings regarding the possible criminal conduct of school district officers, he is thus precluded from participating or serving as both county attorney and a member of the school board of trustees. ). 32 Op. Tex. Att y Gen. Nos. GA-468 (2006), O-3730 (1941). 33 Op. Tex. Att y Gen. Nos. DM-311 (1994), JM-129 (1984). 34 Op. Tex. Att y Gen. No. JM-213 (1984); see also Tex. Att y Gen. LO (1998) (discussing the reasoning of JM-213). 8

8 Page 9 School Board Trustee and... The Authority Says... County Hospital District Board Both offices may NOT be held if the entities have taxing authority in overlapping geographical jurisdictions. 35 County Improvement District Board Both offices may NOT be held; they are incompatible. 36 County or Precinct Chair of Political Party Both offices may be held pursuant to Texas Election Code. 37 County Treasurer Both offices may be held, but the resign to run provision will apply if the county treasurer announces his or her candidacy for the office of school trustee when his or her unexpired term exceeds one year, and he or she will automatically resign the office of county treasurer. 38 District Attorney s Investigator Both positions may be held. 39 District Judge Both offices may NOT be held; they are incompatible. 40 Groundwater Conservation District Board Both offices may NOT be held; they are incompatible. 41 Justice of the Peace Both offices may be held. 42 Juvenile Probation Officer Both positions may be held. 43 Mayor of type A general-law municipality Both offices may NOT be held; they are incompatible. 44 Municipal Judge Both offices may be held Op. Tex. Att y Gen. No. KP-23 (2015). 36 Op. Tex. Att y Gen. No. GA-307 (2005). 37 Tex. Elec. Code ; see Op. Tex. Att y Gen. No. JC-537 (2002) (holding that a school board trustee does not hold an office of the state government, and, therefore, is not prohibited from being a candidate for or serving as county or precinct party chair). 38 Op. Tex. Att y Gen. No. JC-490 (2002). 39 Tex. Att y Gen. LO (1994). 40 See generally Tex. Att y Gen. LO (1998) (adopting the reasoning of Tex. Att y Gen. LO (1995) as to the incompatibility of the offices of county attorney and school board trustee). 41 Tex. Water Code (b); Op. Tex. Att y Gen. No. JC-557 (2002). 42 Turner v. Trinity Indep. Sch. Dist. Bd. of Trs., 700 S.W.2d 1 (Tex. App. Houston [14th Dist.] 1983, no writ). But see Tex. Att y Gen. LO (1998) (questioning the reasoning in Turner). 43 See Op. Tex. Att y Gen. No. GA-1083 (2014) (finding that the board had no power to appoint or supervise the juvenile probation officer, and the position is not an office for purposes of the conflicting loyalties doctrine; thus, the positions are not incompatible). 44 See generally Op. Tex. Att y Gen. No. GA-808 (2010) (applying the reasoning of Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm n App. 1927, judgm t adopted) to a mayor of a type A generallaw municipality that is located wholly within the geographical boundaries of the school district). 45 See generally Op. Tex. Att y Gen. No. JC-216 (2000) (involving a junior college trustee). 9

9 Page 10 School Board Trustee and... The Authority Says... Municipal Utility District Board The office is incompatible with the office of junior college trustee if the entities have taxing authority in overlapping geographical jurisdictions. 46 Parks & Wildlife Commissioner Both offices may be held. 47 Police Chief Both positions may be held. 48 Principal of DAEP Cooperative A principal of a DAEP cooperative MAY serve as a trustee at a member district when that member district does not have authority to employ or supervise the principal. 49 Private, Nonprofit Corporation A trustee may serve on the board of a private, nonprofit corporation under Texas Local Government Code when the trustee receives no compensation or other remuneration from the corporation. Dual office principles do not apply to a private organization. 50 Regional ESC Board of Directors Both offices may NOT be held pursuant to Texas Administrative Code. 51 School Board Trustee The self-appointment aspect of the doctrine of incompatibility voids the appointment of a sitting trustee to fill a vacancy created by the resignation of another trustee. 52 Sheriff It depends on the circumstances Op. Tex. Att y Gen. GA-32 (2003). 47 Op. Tex. Att y Gen. M-1146 (1972). 48 See Op. Tex. Att y Gen. No. GA-393 (2006) (finding municipal chief of police to be an employee of the city; thus, no incompatibility existed). 49 Op. Tex. Att y Gen. No. GA-738 (2009). 50 Tex. Loc. Gov t Code ; see Op. Tex. Att y Gen. No. GA-597 (2008) (finding that mayor and city council member may serve simultaneously on private, nonprofit water supply corporation only if they receive no compensation or other remuneration from water supply corporation) Tex. Admin. Code (b)(1). 52 Op. Tex. Att y Gen. GA-377 (2005). 53 Compare Op. Tex. Att y Gen. No. GA-328 (2005) (concluding sheriff may not simultaneously serve as trustee of a district located within an unincorporated area of the county in which the sheriff serves as the primary enforcement official) with Op. Tex. Att y Gen. KP-54 (2015) (concluding, under facts distinguishable from GA- 328, that the doctrine of incompatibility does not preclude simultaneous service as a sheriff and school board trustee where the local police department and school resource officer perform the law enforcement duties with respect to the school district and the potential for conflicting interests is remote). 10

10 Page 11 School Board Trustee and... The Authority Says... Staff Member of State Representative Both positions may be held. 54 State Agency Governing Body Both offices may be held pursuant to Texas Government Code. 55 State Board of Education Both offices may NOT be held pursuant to Texas Education Code. 56 Tax Assessor-Collector It depends on the circumstances. 57 Teacher A teacher may NOT serve as a board member in the district in which the teacher is employed; however, the teacher MAY serve on the board of another district if the teacher is otherwise qualified to hold that office. 58 Texas Legislature A school board trustee can run for the Texas Legislature. 59 If elected, however, the trustee automatically resigns as trustee upon qualification for the legislative office. 60 Umpire at School District game Both positions may be held. 61 U.S. Congressman Both offices may NOT be held pursuant to the Texas Constitution. 62 Volunteer Teacher It depends on the circumstances Op. Tex. Att y Gen. No. DM-55 (1991). 55 Tex. Gov t Code (b). 56 Tex. Educ. Code 7.103(a). 57 See generally Tex. Att y Gen. LO (1992) (concluding that one person may not simultaneously hold the position of county tax assessor-collector and school board trustee if the school district contracts with the county to assess and collect its taxes). But see State ex rel. Brennan v. Martin, 51 S.W.2d 815 (Tex. Civ. App. San Antonio 1932, no writ) (holding that the office of city tax assessor was not incompatible with school trustee). 58 Tex. Att y Gen. LA-114 (1975) (same district); Op. Tex. Att y Gen. No. DM-55 (1991) (different districts). 59 See In re Carlisle, 209 S.W.3d 93 (Tex. 2006) (holding that a school board trustee who received reimbursement for reasonable expenses was not a lucrative office for purposes of Tex. Const. art. III, 19, which makes persons holding a lucrative office ineligible to run for the legislature). 60 Tex. Const. art. XVI, 40(d); see Op. Tex. Att y Gen. No. GA-421 (observing that a city council member would automatically resign his council seat upon qualifying for the legislature); see also Op. Tex. Att y Gen. No. JC- 464 (2002) (finding that the term office in article XVI, 40(d) applies to any office, paid or unpaid, and construing subsection (d) to prohibit a legislator from holding any other state or federal office, even if the office is not paid. ). 61 See Op. Tex. Att y Gen. No. GA-127 (2003) (finding that the board had no power to appoint or supervise the umpire, and the position is not an office for purposes of the conflicting loyalties doctrine; thus, the positions are not incompatible). 62 Tex. Const. art. XVI, See generally Op. Tex. Att y Gen. No. JC-371 (2001) (concluding that a trustee is barred by the common-law doctrine of incompatibility from serving as a part-time volunteer teacher in a regular academic classroom for a 11

11 Page 12 School Board Trustee and... The Authority Says... Water Improvement District Board Both offices may NOT be held if the entities have taxing authority in overlapping geographical jurisdictions. 64 This document is provided for educational purposes only and contains information to facilitate a general understanding of the law. It is neither an exhaustive treatment of the law on this subject nor is it intended to substitute for the advice of an attorney. It is important for the recipient to consult with the district s own attorney in order to apply these legal principles to specific fact situations. Updated December 2017 single semester). But see Tex. Att y Gen. LO (1998) (concluding that a regent did not violate commonlaw incompatibility by serving as a volunteer coach for a section of the football team.). 64 Op. Tex. Att y Gen. No. GA-224 (2004). 12