HomeMy WebLinkAbout1968-12-30 Special Meeting
MINUTES - SPECIAL MEETING
OF THE
LA PORTS C l TY COMh'r / SS / ON, LA F'0!rTE, TEXAS
December 30, 9968
7:00 P.h',.
MENIBERS OF THE COMM/SS/ON PRESENT: Mayor H. P. Pfeiffer, Commissioners
Lois J. Compton, H. Gould Crofoot, Bobby J. Burgin, and Charles
D. Boyle.
MEMBERS OF THE CC1MMlSSION ABSENT: None
OTHER CITY OFFICIALS PRESENT: City Attorney Knox W. Askins, and City Clerk
Marilyn Kelley City Administrator P. V. Werner.
PRESIDING: Mdyor Pfeiffer.
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9. The City Administrator presented figures relattng to the
population of the area, and the cost of maintatning our
Police, Ambulance and Fire services. (See Exhibit No. 9).
He was authorized to negotitate with the other cities, with
these figures as his guide.
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2. Commissioner Campton made a motion, seconded by Commissioner
Crofoot, that the City Administrator contact the property
owners adjacent to the garbage dump and negotitate for the
purchase of a block. Motion carried.
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3. A discussion was held about the seCection of a City Engineer.
Olympia Engineers, H. Carlos Smith, Baytown Engineers, and
Bayshore Engineering Co. were considered. It was agreed that
H. Carlos Smith should finish the Atrport Project, and that
an engineer would be selected for other projects as needed.
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4. The City Attorney presented an opinion letter relative to
an employee holding another elected office. (See Exhibit 2).
!t was agreed that Cliff Ellis should give up the Office of
Mayor of Shoreacres or his job as Superintendent of Streets
for the City of La Porte.
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5. The Commission discussed Mrs. Bess Connally's paving assessment
and agreed that it should remain as orginally passed.
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6. Commissioner Boyle made a motion, seconded by Commissioner
Crofoot, that water be billed by the 100 gallons instead of
by 1,000 gallons. Motion carried.
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7. A motion was made by Commissioner Boyle, seconded by Commissioner
Crofoot and carried, that the purchase of a 35w General Electrtc
radio, X517.00, to be placed in the Administrator's car, be
approved.
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8. The following bids were presented for the purchase of a 1969
automobile to be used by the Administrator:
Joe Camp, lnc. X2,601.53
Jay Marks Chevrolet 2,401.14
Commissioner Boyle made a motion, seconded by Commissioner
Crofoot, that the automobile be purchased from Jay Marks Chevrolet,
X2,401.14, funds to be taken from the Contigency Fund. Motion
carried.
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9. The City Attorney was requested to brief the possibility of
increasing the Electrical Board from 3 to 5 members.
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10. Commissioner Boyle made a motion, seconded by Commissioner
Crofoot, that the hours for the Public Works employees be
from eight to five, five day a week, with no coffee breaks,
and that no stand-by time be allowed. Further, that the
new schedule be effective at the beginning of the next pay
period. The motion was tabled without a vote being taken.
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THERE BEING NO FURTHER BUSINESS AT HAND, THE MEETING WAS ADJOURNED.
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H . P. PFE l FF R
MAYOR
ATTEST:
MARILYN KELLEY
CITY CLERK
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LA PORa (1687) 6000
NORGANS POINT (170) 600
FAIRMONT PA&,K (550) 1925
~~ 800
sxo~acRES (390) X365
SPENidICK PLACE (110) 385
B,A7[SHORE M. u.D. (475) 1650
CRESCENT SHORES ~ (100 350
couNT7C
13,150
USIIiE} LAST Z~3 LUDI? FIOUB'~8
FIRE
r
9142,000.00 } 13,000
}3.25 Per Capita
POLICE DISP~TCHINa
~26,000.0o s 13,000
}2.00 Per Capita
aMBtn.ANC~ s~avlCs
X16,500.00 s 13,000
X1.25 Per Capita
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LAW OFFICES
KNOX W. ASKINS
122 S. BROADWAY
P. O. BOX 1218
LA PORTE,TEXAS 77571
GREEN FIELD I-1886
December 30, 1968
La Porte, Texas 77571
Hon. Mayor and City Commissioners
City of La Porte
P.O. Box 1115
Dear Mrs. Compton and Gentlemen:
You have requested my opinion on the following question:
"May an employee of the City of La Porte (the Superinten-
dent of Streets and Alleys) hold public office (Mayor of
the City of Shoreacres) in addition to his employment
with the City of La Porte?"
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Section 13 of Article II of the Home Rule Charter of the City of
La Porte provides, in pertinent part, as follows:
". .The Mayor, Commissioners, other officers and employees
of the city shall not be indebted to the city; shall not
hold a~ other office. .;
"Any officer of employee who shall cease to possess any
of the qualificatio-' ns herein required shall forfeit his
office or position. ." (Emphasis added)
In my opinion, the language of Section 13 is clear and unambiguous,
that an employee of the City of La Porte may not hold any other
public office. Although the word "other" which modifies the words
"public office" could possibly be interpreted as limiting City of
La Porte officers only from holding "other" offices, I believe the
final sentence o Section 13, which begins "Any officer or employee
of the City who shall cease to possess any of the qualificatio-' ns
herein required shall forfeit his office or position. ."(emphasis
added) makes clear the intention of the writers the Charter that
both "officers and employees" of the City, are intended to be fully
covered by Section 13 of the Charter.
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Hon. Mayor and City Commissioners - 2
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December 30, 1968
Inasmuch as Section 13 covers both City of La Porte officers and
employees, it only becomes necessary to determine whether the
position of Mayor of the City of 5horeacres is a public office.
The Mayor is the chief executive officer of the municipality.
39 TJ2d, "Municipal Corporations," Section 220. A public officer
is a person who exercises some functions of the government, one who
is commissioned or authorized to perform any public duty. 42 TJ2d,
"Public Officers," Section 1. The Mayor is almost universally held
to be a municipal officer. Antieau, Municipal Corporation Law,
Section 22.00, P. 197.
It must next be determined if the above-referenced Section of the
Home Rule Charter is void, because of conflict with any pertinent
constitutional or statutory provision. Dallas Railway & Terminal
Company v. Price, Tex.Civ.App., 94 SW2d 884, modified on other
grounds, 131 Tex. 319, 114 SW2d 859; 39 TJ2d, "Municipal Corpora-
tions," Section 45.
The provisions of Section 13 of the Charter are entirely consistent
with Article 16, Section 40, of the Texas Constitution, to the
extent that Section 13 prohibits dual office holding. The consti-
tutional provision is that "No person shall hold or .exercise, at
• the same time, more than one Civil Office of emolument. .(with
certain exceptions not here relevant)." Here, of course, we are
concerned with a City of La Porte employee holding outside public
office. Although the Texas constitut onal provision relates to
offices "of emolument," Section 13 of the La Porte Home Rule Charter
refers only to "other public office." I find nothing in the Texas
Constitution on the particular point: Employment by one public
body, and office holding with another.
I find no statutory provisions in conflict with the provisions of
Section 13 of the Charter. Indeed, the language of Section 13 could
probably be traced historically to the General Incorporation Act of
1875, particularly the provisions thereof which are now codified as
Article 988, Vernon's Annotated Texas Statutes. Although this
Article now has application only to general law cities (see "History,
Status and Functions of Cities, Towns and Villages," by Trueman
O'Quinn, Page xiii, et seq, Vol. 2A, Vernon's Annotated Texas
Statutes), and although the language of Section 13 goes further,
the language of Article 988 is instructive:
"No member of the city council shall hold any other
employment or office under the city government while he is
a member of said council, unless herein otherwise provided.
No member of the city council, or any other officer of the
corporation, shall be directly or indirectly interested in
• any work, business or contract, the expense, price or
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Hon. Mayor and City Commissioners - 3
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December 30, 1968
consideration of which is paid from the city treasury, or
by an assessment levied by an ordinance or resolution of
the city council, nor be the surety of any person having a
contract, work or business with said city, for the per-
formance of which security may be required, nor be the surety
on the official bond of any city officer. Acts 1875, p. 154;
G.L. Vol. 8, P. 526."
In a dual office holding case, the Texas Supreme Court, in the 1880
case of State v. DeGress, 53 Tex. 387, held that the office of mayor
of the City of Austin "cannot legally be held by one who at the
same time continues an officer of the Army of the United States,
though on the retired list." The City Charter of the City of Austin
at that time provided that "No person shall be mayor (of the City
of Austin) who at the time of his election is not possessed of the
qualifications required for an alderman, or who holds any lucrative
office under authority of the United States or any State ."
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Officeholders are limited to holding only one office by the provisions
of some municipal charters. 39TJ 2d, "Municipal Corporations,"
Sec. 146. In a very recent case, the Ft. Worth Court of Civil
Appeals interpreted a provision of the charter of the City of
Ft. Worth, which reads as follows: "***If a member of the Council
shall become a candidate for nomination or election to any public
office, other than that of Councilman, he shall immediately forfeit
his place in the Council.***" The Court held, after reviewing
appellant's attack against this provision of the charter, as being
repugnant to the United States Constitution, the Bill of Rights,
the 14th Amendment, and the Texas Constitution and Texas Bill of
Rights, "We could write at length, but believe it sufficient to
say that we find nothing in either the Federal or State Constitu-
tions which expressly or impliedly would prohibit efficacy of the
quoted Charter provision, or which would inhibit its enforcement..."
Willis v. City of Ft. Worth, et al, Tex.Civ.App., 1964, 380 SW2d 814,
error refused, N.R.E. A t ough both of these cases involve dual
office holding, as distinguished from a prohibition against office
holding by a city employee, I believe that the same principles of
law would apply in both cases. I find no Texas case directly in
point on the question of prohibition of outside office holding by
a city employee.
Antieau, in his work, Municipal Corporation Law, makes the following
statement on restrictions upon activities of municipal officers and
employees:
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Hon. Mayor and City Commissioners - 4
December 30, 1968
"Since the holding of municipal office or employment is
traditionally labelled a 'privilege' by American courts,
the Judiciary has sustained many restrictions upon the
lives and activities of municipal servants not likely
to be condoned in application to the general citizenry.
Influential in the development of the law, and typical
now of the state of the authorities, is the remark of
Justice Holmes while on the Massachusetts Court:
"'The petitioner may have a constitutional
right to talk politics, but he has no constitutional
right to be a policeman.' Section 22.06 (citing
McAuliffe v. Mayor and Board of Aldermen of New Bed-
ford 1892) 155 Mass. 216, 29 NE 517.
"In some communities, municipal officers and employees have
been forbidden to engage in politics and the courts have
sustained the bans." Antieau, Section 22.06.
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In other states, under some statutory or charter provisions, a
municipality is prohibited from employing any person holding any
other public office or position for profit. 62 C.J.S., "Municipal
Corporations," Section 708, Page 1432.
In view of the foregoing, it is my opinion that an employee of the
City of La Porte may not hold public office in addition to his
employment with the City of La Porte.
Yours very truly,
`~
Knox W. Askins
City Attorney
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