J D Lambright
501
N.
Thompson
Suite#300
Conroe, Texas 77301
County Attorney
Montgomery
County
September
7,
2018
via email to [email protected]
Honorable Ken Paxton
Attorney General, State ofTexas
Attention: Opinion Committee
RECEIVED
SEP
1·0
2018
OPINION
COMMITTEE
936/539--7828
Fax 936/760-6920
Re:
Request for Opfnfon
regarding
whether
the
City Attorney and/or the City
Administrator
of
the City
of
Conroe, a home rule city,
are
"local
public
officials''s1,tbjectto
Tex;
Local
Government
Code
Chapter
171
Dear Attorney General Paxton:
The Gounty Attqmey
of
Mo,ntgomery
County,
Texas on behalf
of
and at the request
of
the City
of
Conroe,
Texas,
a home
rule
city under
the
l~ws
of
the State
of
Texas~
respectfully
reqt1~sts
an
C>pinipn
regar~in~
wb.e±he:r
the
City
Attorney and/or
the
City
Adrrrihistrator
are
"local
public officials" subject to Chapter
171
of
the Texas
Local
Government Code.
Toby Powell, Mayor
of
Conroe, Texas requested our office seek an
opini011
from
your
office. A copy
of
Mayor Powell's written request
is
attached
to
this
letter.
Background Facts:
The issue arises due
to
a proposed agreement between the City
of
Conroe ("City") and
, the landowner
of
a defunct golf course ("Donor'') whereby the Donor will donate a portion
of
the
defunct golf course property
to
the City
for
park
and
open space purposes. The Donor will
reserve the balance
of
the defunct golf
course
for
future
redevelopment. Under the proposed
agreement, the Donor would receive an exception
to
the City's tree preservation ordinance for
any portion
of
the remaining property
to
be redeveloped
for
single family homes and the City
agrees
to
consent
to
the inclusion
of
the Donor's remaining land in a municipal utility district
to
aid in the redevelopment
of
the property.
~
The City Administrator
and
the
City Attorney each own homes adjacent to the now
defunct golf course. The City Administrator's home is adjacent to a portion
of
the golf course
that would be donated
to
the City
µnder
the proppsed
agreement.
The City Attorney's home is
Letter
to
Hon.
Ken
Paxton
. Septeµiber
7,
2018·
adjacent
to
a portion of the former goJf course that is retained
by
the Donor for redevelopment.
The City Administrator and City Attomey negotiated the proposed agreement on behalf
of
the -
City. The proposed agreement has not been voted on
by
the City Council though the City
Attomey presented the proposed agreement
to
the
City Council in a public workshop. There has
been
no
decision
made
on
the proposed
agre.ement.
There have been public comments or suggestions that the tenns
of
the proposed
agreement>
if
approved
by
the City, may have a special economic effect on the value
of
the
properties
owned
by
the
City Administrator and/or the City
Attorney~
respectively.
If
a special
economic benefit would result then the City Administrator and/or City Attorney may be required
to
comply with Section l7l.()04
of
the Texas Local Govemment Code
if
they are "local public
officials" within the meaning
of
Chapter
17L
The City Administrator and City Attorney contend
they are not local public officials subject
to
the Chapter I 71. ·
Discussion:
Tb.e
City of Conrqe is a home
ruh~
city. The City charter vests all powers
of
the City in
the City Council.
Se.c
3.07, City of Conroe Charter. The City charter includes
a.
provision
granting the City Council the specific power
to
remove any officer or employee. Sec. 3.07(a),
City
of
Conroe Charter.
The City Administrator
and
the City Attorney are not elected officers. The position
of
City Attorney
1s
cr~ted
by
the
City charter. The City Administrator position was created by
ordinance.
1
The City Administrator and City Attorney are each appointed
by
the Mayor with the
consent
of
the City Council
and
serve for
an
indefinite period until removed by the City Council.
Texas Local Government Code section 171.00l(a) defines "local public official'; in a way that
could
include appointed
officers.
of
a municipality. An appointed municipal officer is a "local
public
officialH
unde~·
Chapter
171
only
if
the officer exercises responsibilities beyond those that
areadvisoryinnature.
TEX:.LOCALGOV
1
TCODE * 171.00I(a)(V.A.T.S. 1987).
The City Administrator's duties and responsibilities as described in the city ordinance are
supervisory and administrative in
nature.2
The letter from Toby Powell, Mayort details that the
City Administrator does not have
the
authority
to
accept the proposed donation agreement,
1
The City
d()es
not use a
,e;ity
manager form
of
government.
2
"The city administrator shall be head
of
the
administrative departments
of
the
city and shall have supervision
of
all
administrative officers and employees, other than elected officials. The city administrator shall perform all other
such duties as prescribed
by
the city Charter, laws
of
the state and
as
required by the city council. The city
administrator shall be responsible to the city council for the proper administration and operation
of
all
city
departments and affairs and shall
mak,e
frequent reports
to
the mayor and city council." City
of
Conroe Code
of
Ordinances, Sec. 2.205.
Letter
to
Hon.
Ken
Paxton
September
7,
2018 · · · ·
commit the
City
to the. creation
of
a MUD,
or
grant the exception to the City's.tree ordinance as
required for
the
City to perfonn the proposed agreement. Mayor Powell states
in
his letter that
the authority
to
approve or reject the proposed agreement lies solely with
the
City Council. With
regard to
the
propos~
donation agreement, the City Administrator's responsibilities are advisory
only.
Your
office
has previously detennined that a city employee is not a local public official
subject to Chapter 171.
See,
Tex.
Att'y
Gen. Op. No. GA-0195 (2004) at 2.
3
See also,
Tex.Att'y
Gen. Op.
No.
KP-0105 (2016) at 2. In construing the predecessor statute to Section 171.001,
your office found an investigator appointed and employed by the criminal district attorney to
be
a "local public official". Tex.
Att'y
Gen. Op. No. JM-776 (1987).
4
The
investigator would not,.
howevyt"
1
violate (J:hapter 171
even
though the investigator held a community property interest
in
,
his
spoU$~'s
llaH
b<md
busine.ss.
Id.
A city staff employee working for a city's historic landmark
preservation overlay district
and
planning and zoning commission residing
or
owning property
within
the district
was
detennined not to
be
a local public official under the application
of
Chapter 171, including when the
staff
employee made recommendations regarding property
within
the
district. Tex.Att'y Gen. Op. No.
KP-0105
(2016).
In
the same opinion, members
of
the
city's
historic landmark commission and the planning a zoning commission residing
in
the
district were lo.cal public
officials
because the respective commissions exercised responsibilities
such as reviewing 'and taking action on constmction, alteration, restoration, and demolition
on
structures issues and
for
which the commissions' decisions were final subject to appeal to the
city council. Id.
The
position
of
City Admfuistrator for the City
of
Conroe has many characteristics
of
the
position
of
employee. The. City Achniuistrator is appointed for
an
indefinite time, i.e. not a term,
and serves until removed
by
the City Council. The City Administrator serves
at
the will
of
the
City Council and
may
be removed with or· without cause
by
the City Council.
The
City
Administrator
is
r:equirt}d
to
report to the City
Co_uncil.
The City Administrator's ability to
approve expenditures is limited
to
expenditures under
$50,000_;
all other expenditures require
City Council approval.
Your office has previously dete,:mined that the City Attomey for
the
City
of
Alpine was
an
employee and was not holding a public office. As such, the elected county attorney
was
not
precluded from serving as the city attorney
by
either the bar
on
dual-office holding pursuant to
art. XVI, § 40
of
the
Constitution
or
the common
lavy
doctrine
of
incompatibility.
Tex.Atfy
3
The
person at issue in GA-0195 was a local public official
with
regard to
the
special utility district as a member
of
the board; however. his employment with
the
City
of
Midlothian did not disqualify him from voting as a
board
member on conti;acts or matters between
the
district
and
the City. GA-0195 addressed the service
of
the
employee
on the hoard
of
the
district with regard
to
the
issues of
dual
office holding
and
Chapter l
71.
4
The investigator
was
determined to
be
a local
public
official
due
to
the
investigator's authority
to
make
warrantless
arrests
as
a responsibility
of
the
office-beyond
that
as-
advisory in
nature.
Letter to Hon, Ken Paxton
September 7, 2018
Gen. Op. No. JC-054 (1999). Significant factors in that opinion were that the city attorney
seryed at the will
of
the city council and that the legal services to
be
perfom1ed
by
the city
attorney were
to
he
directed
by
the city council. lb. The City Attorney
of
Conroe serves at the
pleasure
of
the City Council and is subject to its direction and control. The City Attorney
may
be
removed with or without cause
by
the City Council. The letter from Toby Powell, Mayor,
details that the City Attorney does not have the authority to accept the proposed donation
agreement, commit the City to the creation
of
a MUD,
or
grant the exception to the City's tree
ordinance as required for the City to perfonn the proposed agreement. Mayor Powell states in
his letter that the authority to approve or reject the proposed agreement lies solely with the City
Council.
• Applying the definition
of
local public official
in§
171.00l(a), the issue is whether the
City Attomey ''exercises responsibilities beyond those that are advisory in nature." See,
TEX.
LOCAL
Gov'T
CODE§
171.00l(a). The City Chartet describes the responsibilities
of
the City
Attorney as '"the .legal advisor
of
and attorney and counsel for, the City and ali officers and
departments thereof.'' Sec. 4.05 City Charter.
5
The City Charter is silent on all other ·
responsibilities other than acting as the legal advisor and attorney for the City.
By
City
ordinance, the City Attorney and other department heads have limited authority for minor
purchases
(un,9er
$3,00Q).
Qiy~n the foregoing,
tht1
Cou;nty
Attorney
of
Montgomery County, Texas
on
behalf
of
and at the request
of
the:
City
of
Co~·oe, Texas respectfully requests an opinion regarding
whether the City Attorney and/or
the
City Administrator are '"local public officials'' subject to
Chapter
171
of
the Texas Local Govenunent Code. On behalf
of
the City
of
Conroe, Texas and
the citizens it serves, we thank you.for your time and attention to this matter and look forward to
any guidance you and your office may
be
able
to
provide.
Please contact me with any questions.
;riffin,
1
st
Assistant County Attorney
s
"The
City
Cc>urtcif
by
a majority
vpte
of
its total membership shall appoint a competent attorney licensed
to
practice law
iµ,
the State
of
Texas,
who
sha:11
be
the
City
Attorney.
He shall receive
for
hi$
services such
compensation
as
tnay
be
fixed
by
the'
City
Council
and
shalt
hold
his
office until removed
by
the majority vote
of
the
total membership
of
the City Council. The CityAttorney, or
such
other Attorneys selected
by
him with the approval
of
the
City Courtcil, shall
represent
the
City
in
all.litigation.
He
shall
be
the
legal advisor
of
and attorney and
counsel
for~
the City
arid.all
officers and
departments
thereof:'
Sec.
4.05, City charter.
CITY
OF
CONROE
August 27, 2018
Hon.
J.
D. Lambright
Montgomery County Attorney
501
N.
Thompson,
Suite
300
Conroe,
Texas
77301
Est. 1904
Re:
Whether or
not
the City Administrator
and
City Attorney
of
the City
of
Conroe
are
,.'local
public
officials"
subject
to
Texas
Local
Government
Code
Chapter
171
Dear Cpunty Attorney
Lambright:
On behalf
of
the City
of
Conroe I request your
assistance
in
seeking an Attorney General
opinion
on
the question
of
whether
or
not the City Administrator
and
City Attorney
of
the
City
of
Conroe are ''local public officials" subject
to
Tex.
Local
Gov.
Code
Chapter 171.
Background
This question is presented in connection with a proposed
agreement
for the donation
of
a
portion
of
a defunct golf
CQurse
to the City to be
used
for park and open
space
purposes.
The
donor would · reserve the balance
of
the golf course property for future
redevelopment
Under
the
proposed
agreement
the.donor
would
receive
an
exception
to
the
Gity's
1:I'ee
~ation.
orclinance
for
portions
-0f
the property redeveloped fbr single
family
homes
and
the City would
colllilent
·to
the inclusion
of
the remainder property in a
municipal
utility
district
to
aid
in
the
redevelopment
of
the
property.
The City Administrator owns a home adjacent
to
a portion
of
the
golf course property
that is
proposed
for donation
to
the
City.
The
City
Attorney owns a home
adjacent
to
a
portion
of
the
golf course property
that
would be retained
by
the donor
and
subject
to
possible redevelopment.
The
City Administrator
and
City Attorney negotiated the
proposed agreement on
behalf
of
the City.
The
proposed agreement
was
presented
by
the
City Attorney to the City Council in a public
workshop
but the Council
has
not voted on
the agreement and
no
decision
has
been made
on
the
agreement.
It
has been
suggest~d
that
the
proposed
agreement
may
result
in a
special
economic effect
on
the value
of
the property owned by the City Administrator and/or City
Atton:iey
thus
300
W.
Davis
I
P.O.
Box,3066
I
Conroe,
TX
77305
I
T:
936.522.3030
I
www;CityofConroe.org
Page/2
requiring them to comply with Section 171.004
of
the
Code
if
they are "local public
officials" within the meaning
of
Chapter
171.
The
definition
of
"local public official''
includes
appointed
officers of a
municipality
who
exercise
responsibilities
beyond
those
that are advisory in
nature.;,
Powers
and
du.ties
ofCit]
Council~
City Administrator
and
City Attorney
The City
of
Conroe is a home rule municipality. Under
Sec.
3.07
of
the City charter "all
powers
of
the City and the determination
of
all matters
of
policy shall be vested
in
the
City Council." Without limiting
the
general
grant
of
authority the charter
enumerates
certain specific
powers
of
the City
CounciL
Sec.
3.07(a) provides that the City Council
may "Remove
from
any
office.
or position
of
employment
in
the
City Government any
officer
or
employee or member
of
any
board or commission.''
The City Attorney is appointed
by
the Mayor with the consent
of
the City Council and
serves for
m1.indefiniteperiod
until
removed
by
the City
Council.
The City Attorney may
be
n,moved
wi~
9r without cause at
the
pleasure
of
the
Council.
Sec. 4.05 of
the
City
charter provides
as
follows:
"The
City
Council
by
a majority vote
of
·its
total membership shall appoint a
competent attorney licensed
to
practice law in the State
of
Texas,
who
shall be
the City A~r.t1ey~
He
shall receive for his services such compensation as may
be fixed
by
the
Qicy
Council
and
shall
hold
his
office
1;1ntil
removed
by
the
.majority vote
of
the total membership
of
the City
Council.
The City
Attomey~
or
such other Attorneys selected
by
him
with the
approval
of
the City Council,
shall represent the City in all litigation. He shall be the legal advisor
of
and
attomey and counsel
for,
the City
and
all officers and departments thereof" '
The City
of
Conroe
is not a city manager
form
of
government
but
has by ordinance
created the position
of
City Administrator. The City Administrator is appointed
by
the
Mayor with the consent
of
the City
Council
and
serves
for
an indefinite period until
removed from the position
by
the City Council. The City Administrator may be removed
with or without cause at the pleasure
of
the Council.
Sec.
2-205
of
the Code
of
Ordinances prescribes the
duties·
and responsibilities
of
the City Administrator
as
follows:
"The city administrator shall
be
head
of
the administrative departments
of
the
city and shall
have
supervision
of
all administrative officers and employees,
other
than
elected
officials.
The
city
administrator
shall
perform all other such
duties as
prescri"lled
by
the
city
Charter,
laws
of
the state
and
as
requireµ
by the
city
council..
The city administrator shall be responsible to the city council for
the proper administration and operation
of
all city departments and affairs and
shall make frequent reports
to
the
mayor
and
city council.''
By
ordinance the City Attomey,
in
common
with other city department heads has been
authorized to make minor contracts
for
purchases required for municipal purposes
providing that any contract fur
an
expenditure
of
more than $3,000 must be approved
by
, soo
w.
DAVfS}
P.O.
Box
3066
l
CoNROE,
TX
77305:
T:
936.522.3000
J
www.cityofconroe.org
Page
13
the City Administrator. The City Administrator's approval authority is limited to
expenditures
below
$50,000 and all expenditures
of
$50,000
or more
must
be approved
by
the City CQuncil.
Neither the City Administrator or the City Attorney have authority to make the proposed
donation agreement
on
behalf
of
the City
or
to
commit
the City to the creation
of
a
municipal utility district or to grant the exceptions
to
the City, s tree ordinance which
are
conditions
of
the
proposed
dona.tio:11.
AUho:ugh
the
City
Administrator
and
City
Attorney
have.
been the primary·City negotiators, the authority
to
approve
or reject the proposed
agreement lies solely with the City
Council.
Relevant
Attorney
Oeperal
Opinions
KP-0105 (2016)
found
that a Beaumont city
.employee
providing
staff
support
to the
Beaumont Planning and Zoning Commission is
not
subject to chapter 171.
KP-I
05
cited
Opinion GA~Ol95 (2004) which
found
a City
of
Midlothian employee described
as
a
front line supervisor with limited authority
for
the purchase
of
supplies was not a public
official in his capacity
as
a Midlothian city
employee.
GA-0195 quotedAldine
Independent
School
District
v.
Standley,
280
SW
2d
578 (Tex.
1955) saying
"'the
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."
JC-0054 (1999)
found
that
the
position .of attorney
for
the City
of
Alpine is not a public
office.
The
factual
setting
d.escnoedin
that
:opinion
noted that the
attorney
was appointed
by
and
served
at
the
wiU
of
the.
city
.council
and
performed
all
services
incident
to
the
position as directed by the Alpine City Council and concluded, ''Given that you serve
at
the will and under
the
direction
of
the
city
council,
you
do
not exercise a sovereign
junction
of
the city
largely
independent
of
the
control
of
others."
If
you agree
to
submit
this question
to
the Attorney General please include
this
letter
as
a
statement
of
the applicable
facts.
Thank
you
for
your
cooperation with this
request.
~llll"'ler:
9
e1"4f-.
,,.._'
U'«ll!Wl~.A
Toby
Mayor
o
Conroe,
Texas
soo
W.
DAVIS
[P.O. Box
3066
I
CONROE,
TX
77305
l
T;
936.52~.3000
J
www.cityofconroe.org_
