Breckenridge Texan

Experts: No legal issues with upcoming Stephens County sheriff’s race

Experts: No legal issues with upcoming Stephens County sheriff’s race
September 18
11:24 2020

Publisher’s Note: The Breckenridge Texan is a non-profit news organization and, as such, does not endorse or in any other way support any political candidate, party or issue. When covering political issues, we strive to be as unbiased and fair as possible. For example, for this article, we made every effort to contact those directly involved with the issue, as well as those who are considered experts on the topic.

By Tony Pilkington and Carla McKeown/Breckenridge Texan

Earlier this month, Stephens County Attorney Gary Trammel submitted a request for an opinion from Texas Attorney General Ken Paxton regarding Kevin Roach running for the office of Sheriff while his brother, Michael Roach, is the County Judge. The opinion request was submitted at the request of Jay Marcom, the husband of Kathy Marcom, the other candidate for Sheriff, Trammel said.

The Breckenridge Texan conducted extensive research into the issue and could find no legal experts and/or documents that indicate there is a problem with two relatives holding public office at the same time. Although, in some instances, one of the officials might have to abstain from participating in discussions or votes regarding their relatives.

The opinion request focuses on Texas law related to ethics in the government, specifically to Chapter 573, which addresses nepotism issues, and other statutes concerning the duties of county officials, including the county judge. Click the following link to see the opinion request: Request for Opinion

Both Trammel and Jay Marcom confirmed that Marcom submitted a list of questions for the Attorney General and a list of possibly related previous AG opinions and court cases. However, Trammel and several other legal experts said that they do not think that any of the circumstances apply to the current Stephens County situation and that there does not appear to be anything illegal or unethical about the possibility of the two brothers holding offices in the same county.

“(The law) doesn’t say anything about running for election, and I believe that, based on what I’ve been told, not only by some of the people down in Austin that I contacted, but I expect that what the AG’s office is going to say, as long as he (Kevin Roach) is not being appointed, that’s OK,” Trammel said.

Kevin Roach is the Republican candidate for Stephens County Sheriff, and Kathy Marcom is the Democratic candidate for the office. The election will be on Tuesday, Nov. 3.

In a phone interview on Wednesday, Jay Marcom said that he has questions about the legality of the situation and that he wanted an official opinion on it. “All I did was go to Gary Trammel and say, ‘Can he?’ That’s all I did. I asked him to get an Attorney General’s Opinion,” he said.

Marcom said that his request had nothing to do with his wife’s candidacy and that he has asked for opinions on other issues in the past.

Both Michael Roach and Kevin Roach said that they sought legal advice early in the process of Kevin Roach filing to run for sheriff and had been told that it was not an issue.

“I sought legal counsel through several different legal associations, and the answer I was given is it’s not an issue,” Kevin Roach said Wednesday evening. “This question has been asked and answered in multiple rural counties all over Texas.”

Texas law

There are laws in Texas that prevent an elected official from hiring or appointing a relative to a paid position. However, in the Stephens County case, both brothers would be elected and neither would be “hired” or “appointed” by the other.

According to Jim Allison, General Counsel for the County Judges and Commissioners Association of Texas, none of the laws apply to the situation where both relatives are elected officials.

“The situation as I understand it is that a relative of a member of the Commissioners Court is running for public office and will be on the ballot in November. There is no nepotism issue involved in a person running as a candidate for public office,” Allison said. “We’ve actually had several instances in which relatives have served in elected public office at that same time. The nepotism statute … only applies to appointments.”

A similar situation has been in place in Bexar County for several years. Nelson W. Wolff has been County Judge since 2001, and his son, Kevin Wolff, was elected as a Bexar County Commissioner in 2005. Kevin Wolff has chosen not to run for re-election this year, and his term will expire at the end of 2020.

There are other examples, including in Trammel’s wife’s family. Her grandfather, Carl Peek, was County Judge in Concho County while his brother, Marvin Peek, was Sheriff. Additionally, in the 1970s, Allison served as County Attorney of Delta County, while his father, Ardell Allison, was a County Commissioner.

Locally, in 2010, Sonia Sikes ran for the office of Stephens County Clerk while her father-in-law, D.C. “Button” Sikes, was a Stephens County Commissioner. Sonia Sikes lost to Jackie Ensey, but no objections were raised during the election about her right to run for the office, according to Trammel and former County Judge Gary Fuller.

“It was a close race, but (Sonia Sikes) did get beat. And it was a situation like this where one was a Republican and one was a Democrat,” Trammel said. “Nobody ever, to my knowledge, nobody ever challenged it, and I tell you that nobody ever brought up the issue to me as county attorney to make a determination or ask for an AG opinion.”

Fuller, who was Stephens County Judge for 24 years, also said he heard no concerns about Sonia Sikes running for office.

“I can assure him, it doesn’t make any difference whether someone (is related to an elected official), because you’re elected by the people and they don’t care whether you’re related or not if they vote on you,” Fuller said. “That would be an injustice and against his (Kevin Roach’s) constitutional rights to run for public office. It doesn’t make any difference if your brother, your sister or somebody else already holds a public office. You have every legal right to run for office. You’re an individual, you’re a taxpayer. It makes no sense at all.”

According to Allison, the Commissioners Court, which includes the county judge, has no control over the Sheriff’s Office, other than approving the budget. In fact they cannot even remove the sheriff from office. “Removal of a public official is governed by Chapter 87 of the Local Government Code, and it requires a removal suit brought in District Court by the county attorney,” Allison said.

Kevin Roach said that the opinion request cites laws and cases that do not apply to whether or not someone can run for an office or be elected to an office. “Nepotism applies to appointment, and if you read the local government code section 573.041, ‘prohibition applicable to a public official’ uses the word ‘appointment’ over and over,” he said. “It’s regarding an appointment, reappointment, confirmation of appointment or reappointment, employment. … It’s all focused on ‘appointment,’ not ‘elected.’ If I was to be appointed to the position … that has not happened and will not happen. I’ll either be elected by the voters or I won’t be in the position of Sheriff.”

Michael Roach said that after he was asked about the legality of the situation by Jay Marcom, he asked Trammel and Allison for their opinions.

“I’m not saying I’m perfect, however, we have abided by the laws and will continue to do that and operate the county government in a way that’s transparent, regardless of who fills those offices,” Michael Roach said. “I asked … the county attorney how he felt about it, and he said in his opinion he does not see a conflict.”

Other Concerns

According to the request for an opinion from the Attorney General’s office, other concerns about the Stephens County situation are related to Michael Roach’s role in the county government in regards to the budget, which includes the sheriff’s salary and the Sheriff’s Office budget.

Michael Roach said that he sought clarification on that subject.

According to Allison, the Commissioners Court controls the budget and the compensation of the sheriff and sheriff’s office. There is one item in chapter 573 that states that, if there is a relative serving in a position, any compensation increase would be limited to an increase that applied generally to all county officials, he said.

“In other words, they could not give the sheriff in this case, a pay raise unless they were giving a similar pay increase to other elected officials,” Allison said.

Additionally, Allison said that whether or not the county judge would need to abstain from decisions involving his brother’s salary depends upon the amount of the compensation. “That would be governed by Chapter 171 Conflict of Interest Statute as to whether he would be required to abstain,” Allison said. “Generally if the increase were less than 10 percent of the income of his brother and it applied generally to all officials, he would not be required to abstain; he might choose to do so.”

Trammel agreed and said he believes the AG’s office is going to say that Michael Roach will have the ability to continue to approve and do budgets for the Sheriff’s Office as long as there’s not a budget increase for the sheriff’s pay alone. “If it was an across-the-board increase, it would be OK,” Trammel said. “But if the sheriff himself as the sheriff is going to get a raise, Michael could not vote for that.”

In a phone interview Wednesday afternoon, Jay Marcom, who is listed as Kathy Marcom’s campaign treasurer on the paperwork she filed in the County Clerk’s office, said that there are previous AG opinions indicating that the county cannot pay Kevin Roach to be sheriff because Michael Roach is the county judge. However, none of the 16 AG opinions listed in Trammel’s opinion request involve two elected officials; they all concern an elected official and a relative who was already working for the government entity or was hired or appointed to an employment position within that government agency.

Another issue brought up in the opinion request is whether or not the relationship between the county judge and one of the sheriff candidates would prevent the judge or any of the county commissioners from canvassing the votes after the election. Again, the legal experts said they do not see a problem with that happening.

Earlier this year, Allison responded to Michael Roach’s question about the topic in an email, saying, “While no statute prohibits your participation, two members of the Commissioners Court constitutes a quorum to conduct the canvass under Section 67.004. To avoid any suggestion of improper influence, you may wish to decline to participate in the canvass.”

Timeline of events

Although County Judge Michael Roach is confident that no laws are being broken or will be broken if he and his brother are both elected officials in Stephens County, he does not dispute anyone’s right to seek an opinion from the AG on the matter. However, he does question the timing of the opinion request.

The opinion request from Trammel that is posted on the AG’s website does not include a date, but the information attached to the letter by the AG’s office indicates that it was received by the Opinion Committee on Sept. 9 at 3:40 p.m., 55 days before the Nov. 3 election that includes the Stephens County Sheriff’s race. According to information on the AG’s website, “Most opinions are issued within 180 days of the request, but the amount of time required may vary depending on the volume of research required and the number and length of commentaries and briefs received.”

Of the 10 most recent opinions issued by Paxton, eight took an average of 180 days, ranging from 173 to 182 days each. Two opinions were issued on Aug. 7, 42 days after they were received by the Opinion Committee. Both were submitted by State Legislators, and one of them specifically requested an expedited opinion.

Several other recent opinion requests that were handled in fewer than the typical 180 days also included similar language seeking an expedited opinion. The Stephens County request does not mention the need for an expedited opinion.

There are 25 other pending requests for opinions from the AG from this year, with submission dates ranging from April 1 to Sept. 3. Paxton has issued 54 opinions this year.

Trammel said that he first received the request from Jay Marcom last December but that he had surgery that month and wasn’t able to respond to the request. He said Marcom contacted him after the first of the year, again asking that Trammel request an opinion from the AG.

Trammel said that he mailed in the opinion request in March, around the time that the coronavirus began to impact everyday business operations but never heard anything from the AG’s office about the opinion.

“They said they never got it,” Trammel said. “So, then I got an Open Records request from A.D. (Chachere, staff writer at the Breckenridge American), and he wanted a copy of (the Opinion Request). So, I went ahead and had it emailed to the AG, so that I could say, ‘Yes, it has been filed; I know they’ve got it.’ And I didn’t have to worry about it getting lost in the mail again.”

Trammel said he thought the AG’s office had 25 days to respond to the request and thought that filing the request electronically on Sept. 9 provided enough time to get an opinion before the election.

Marcom said he was surprised that the issue has come up now since he had first asked for the opinion request last year.

Requesting Opinions

According to the Texas Attorney General’s website, Texas law allows the AG to issue opinions, which are considered written interpretations of the law. There are specified people who are allowed to submit an opinion request to the AG’s office, including the County Attorney. District Attorneys also can request opinions. Click here to see the complete list of authorized requestors.

The County Attorney can make opinion requests on behalf of citizens but is not required to submit all requests that he is asked to submit. The decision to submit a request is made at the discretion of the official requestor, according to the AG’s website.

“I’m not obligated,” Trammel said. “It’s just like if someone files a criminal suit; I’m not obligated to move forward. I can always say I don’t think this is a good case and not file it. Or, if it’s been filed I can dismiss it, and it’s strictly up to me. This case strictly was I was trying to put something out of the rumor mill and get a firm answer, to stop the questions that might come out of that particular issue prior to the election.”

Current Stephens County Sheriff Will Holt, who decided not to seek another term in the office, said that the situation is a non-issue.

“It has been answered years, or decades ago by the Attorney General’s Office as being a non-issue,” said Holt, who has a Ph.D. in Criminal Justice/Law Enforcement Administration from the University of Southern Mississippi. “The only reason it’s being brought up now is because there’s a political race involved, and mudslinging and smoke and mirrors are being posed by one side of the political race to try to smear the other side, and that is disgusting and has no pure honest intent to it in terms of pressuring the county government to seek that opinion.

“…you can imagine in the history of rural counties there’s often only a limited number of people who are, first, qualified to run and secondly want to run in rural counties, small towns and small counties, as far as populations go,” Holt continued. “So this has been a legal question that was answered a long time ago.”

The Breckenridge Texan made several attempts to contact Kathy Marcom via the phone number she listed on the paperwork she turned in to the county clerk and via requests conveyed to Jay Marcom during and after our interview with him. Kathy Marcom did not return our calls.

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