by ANDY SEVILLA
The ever-abundant shades of gray in state law have bred a potential conflict of interest or conflicting loyalties within the City of Kyle and Hays County’s Emergency Service District Number 5 (ESD5).
Mike Fulton, who serves on Kyle’s Planning and Zoning Commission (P&Z), also serves as an ESD5 commissioner. Both groups are seeking to expand their tax collections over the same land.
In determining whether holding two offices is incompatible, the state maintains that “common-law incompatibility refers to the prohibition against a person holding certain public offices at the same time because of the practical conflicts of interest that might arise,” according to the 2012 Texas Dual Office Holding Laws Made Easy pamphlet.
“For example, the doctrine of incompatibility prevents a person from holding two public offices if a person could use the power in one office to impose policies that impact the other office,” the pamphlet says.
At a joint Oct. 12 meeting between the Kyle City Council and the city’s P&Z, where 2013 planning priorities were discussed, annexation was atop the list. P&Z will help council members decide what properties to annex in Kyle’s Extra-Territorial Jurisdiction (ETJ).
Finding themselves in a budget crisis, ESD5 commissioners were slated to call for a Use and Sales Tax election this May that would have collected a $0.015 tax over their service area, a huge portion of which is in Kyle’s ETJ, the same land the city has the option of annexing.
But, Mike Fulton who could help council members decide what property in Kyle’s ETJ to annex, while at the same time serving as a commissioner for ESD5, a group which is pursuing plans to collect sales taxes over Kyle’s ETJ, says that both entities can bridge a compromise.
“As a resident and as a P&Z member I am excited at the idea of the city expanding to further help develop the surrounding ETJ areas,” Fulton said. “… As an ESD member I am always happy to see increased tax base through further development, what’s good for the city is good for the ESD too.”
ESD5 commissioners last month delayed pursuing a sales tax election in May after city officials described being “blindsided” by plans to call for the election without discussing the matter with them, which would affect future collection of city taxes.
ESD5 commissioners then decided to enter into discussions with Kyle on the service district’s plans to call for a sales tax election for November 2014.
In state law, the conflicting loyalties prohibition “prevents a person from holding two public offices when the interests of the two entities may conflict and when voting on behalf of one public entity would possibly compromise the interests of the other public entity,” the pamphlet says.
However, “for there to be a conflicting loyalties issue, both positions must be ‘public offices,’” the pamphlet cautions.
A public office is defined in the pamphlet as “first, the officeholder’s authority to exercise governmental power for the benefit of the public; and second, the officeholder’s independence from the control of other governmental entities or officials.”
But, the pamphlet does express the prohibition of a P&Z commissioner from holding certain second offices. The only example offered, however, is that a P&Z member cannot also be a director of a municipal utility district.
With that specific mention, the pamphlet may identify the P&Z as a public office. An ESD5 commissioner is a member of a taxing entity, which exercises governmental power for the benefit of the public and also has independence from control of other governmental entities – a public office.
Generally, according to the pamphlet, an individual also may not hold offices on two governing bodies if the geographic boundaries of the two overlap.
“The fact that the boundaries of the two entities overlap raises the potential for conflicting loyalties,” the pamphlet says. “If both entities have the power of taxation, the attorney general has held that the potential for conflict is insurmountable.”
Whether the holding of two public offices would violate common-law incompatibility, conflicts of interest or conflicting loyalties requires a factual consideration of the duties of each position and is dealt with on a case-by-case basis.
