WILL PUSH EVER COME TO SHOVE OVER BROWNSVILLE FIRE CHIEF BEING ON BISD BOARD? NEW AG OPINION CITED

By Juan Montoya

During this year's Brownsville Independent School District election for the board of trustees, much was made over the fact that firefighter Rigo Bocanegra was running for office when the city personnel policy manual specifically prohibits a city employee from serving on the board of a jurisdiction that overlaps the city.
The city manual states that:

Section 702: Political Activity
"B. Specifically, City Employees may not engage in the following activities:
4. Hold an elective City office or hold an elective or appointive office in any other jurisdiction where service would constitute a direct conflict of interest with City employment, with or without remuneration. Upon assuming such office, an Employee shall resign or shall be dismissed for cause upon failure to do so."

Left unsaid, of course, was the fact that another city employee, fire chief Carlos Elizondo, was already on the BISD board, contrary to decisions made in the landmark El Paso case.

Coincidentally, that decision that forced the city of El Paso to give a firefighter who won election to the Socorro ISD a choice of keeping his job or sitting on the school board was made when Dr. Sylvia Atkinson was superintendent there. The firefighter chose to keep his job and did not serve on the board.

Atkinson, on the other hand, is on the BISD board now and could force the issue of Elizondo being on the board if she so desires.

But don't hold your breath that the civil service rules (or for that matter any other rules) will be followed or enforced in Brownsville. We have a city manager who should have been a firefighter because all he does for his $240,000 salary is put out brush fires, and an ethics-challenged city attorney who has been likened to a bobble-head because he tells the city commission and Da Mayor that it's "legal," though not necessarily right or moral. 

Now the issue of a city employee who has authority over public health (like a fire chief) has been issued by the Texas Attorney General. It deals with conflicts of issue that a fire chief can have if he sits on the local school board. We thank one of our readers for the catch and post the relevant part below.

"The AG has adopted an old opinion which deals with the potential conflict and includes public health. If Elizondo is over the Fire marshal and they are responsible for inspecting BISD's fire prevention measures and extinguishers, Elizondo has a conflict. He can order his staff to ignore violations which will cost BISD money, or order the citations issued which will cost BISD money."

From the AG opinion:

"A Texas court first described conflicting-loyalties incompatibility in the case of Thomas v. Abernathy County Line Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted), in which the court held the offices of school trustee and city alderman to be incompatible. Id at 153.

The court said that there are in the city council or board of aldermen various directory or supervisory powers exertable 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, sani~ary, 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."

"Under this opinion if Elizondo's fire inspectors have jurisdiction over BISD he has a major conflict because he can authorize citations against BISD, or order his staff to not issue the citation.

He also has the problem of the non existent conspiracy. He may order nothing, but the inspectors fearing for their jobs may not issue citations. Elizondo could be in the total dark about what is happening – hence a non existent conspiracy – but his employees act out of fear and not any real order or command from Elizondo."