Dual Office Holding - The May 19 Conspiracy

The Mayor and past City Council, with the complicity of City Secretary Alice Holloway did evade and ignore the Dual Office Holding prohibitions in the Texas Constitution and violate Texas Government Code Section 574 as a result of deliberations in an Executive Session during the May 19 City Council Meeting.
See Our Documents Online Section at the end of this Article for copies of all the documents.


As a result of deliberations in CLOSED Executive Session with the City Attorney, the City of Wilmer conferred, by ordinance, dual offices on Marcus Smith in violation of Article XVI, Section 40, of the Texas Constitution and Texas Government Code Chapter 574 Dual Office Holding prohibitions. The City, engaged in fraudulent employment contracts, awarding the City Secretary job to both Smith and Holloway and obligating the City's funds on all contracts beyond the current fiscal period. As a result, employment agreements were executed with Marcus Smith enjoying the positions of City Secretary by contract - and Fire Chief and Code Enforcement Officer by appointment statement and oath.

Mayor Steele has maintained that the signing of the employment agreement with Marcus Smith as City Secretary was merely a clerical error and has refused to deal with the issue. However, since Alice Holloway occupied that position at the time the agreement with Marcus Smith was executed, a fraudulent contract was executed with both Smith and Holloway at the direction of the City Council - without the advice of the City Attorney. The fact that until the acceptance of her resignation as City Secretary at the August 4 City Council meeting, Alice Holloway retained some statutory standing as City Secretary, clouded by the contractual claim held by Marcus Smith. The expenditure of taxpayer funds for an interim replacement while allowing two conflicting claims by contract as well as statute doesn't seem to fit any reasonable standard of accountability.

Judicial action on dual office holding violations requires an "emolument" be received in more than one position. Perhaps Alice Holloway receives some benefits from Wilmer while serving in her new post, a cell phone perhaps or Internet device or service, an insurance benefit, anything of value? We have no idea what kind of severance package she may have enjoyed.

The City may claim Marcus Smith is not, does not and will not assume the duties of the City Secretary, however, the City has not invalidated his employment contract. The City may claim the Marcus Smith received only one salary as Fire Chief although the executed contract clearly indicates his salary as City Secretary. The City Administration may have planned this as part of some "fraud conspiracy" as there is no enabling ordinance or authority for a fire department nor fire chief in the City of Wilmer and one way to ensure Chief-Enforcer Smith's continued employment would be to execute a contract for a position authorized by statute.

The City also furnishes a take home vehicle for Smith's use.  All of Smith's "code enforcement" activities are conducted using this vehicle. Mr. Smith obviously uses this taxpayer furnished resource outside the confines of his official duties as we've all seen him shopping and other errands while driving the vehicle. No matter, the mere fact that the City furnishes a vehicle for his convenience while acting as the "unpaid" Code Enforcement Officer constitutes an "emolument" by most standards.

Public Information Requests regarding Mr. Smith's financial records with the City of Wilmer have thus far only yielded expenses in the role of Code Enforcement Officer. There have not been any other records yet returned as the result of our public information inquiries. Interesting to note that although the City furnishes a vehicle for Mr. Smith's take-home use, Smith's expense reports show he uses his personal vehicle and receives a mileage allowance when traveling on the City's business for training. Strange that one would choose to use a personal vehicle rather than one supplied by one's employer for job related travel unless there was a pecuniary gain or advantage.

The dismissal of Fire Chief/Code Enforcer/Secretary Marcus Smith might seem to solve the immediate problem. Unfortunately, the collusion among the city council and other city officers to defraud the taxpayers (by contract) and violate the Texas Constitution (GC 574, PC 39.02) by naming one person to two of the four "officer positions" created by ordinance is an unavoidably intentional and willfull act not in accordance with statute or other law.

The City then executed two Oath and Affirmation statements for Mr. Smith's dual offices in the official government documents in the public record. Certainly, our elected officials have every right to claim ignorance of the law - although perhaps criminal stupidity in this instance. With an officer of the court present the council should have received something remotely resembling competent legal counsel - which of course the council is free to ignore and stumble over statute blindly and willingly. According to the City Attorney, he didn't draft or review the contracts, so it appears that Holloway and the Council made all the clerical errors.

The good taxpayers of Wilmer demand the ouster of Marcus Smith for these reasons.

The good taxpayers also DEMAND that our elected officials pay the price for their intentional wanton disregard for the Constitution and Laws of the State of Texas which they have all sworn to uphold and by their acts violated that oath and the public trust.

Finally, the taxpayers and citizens of Wilmer demand that the City retain COMPETENT LEGAL COUNSEL to protect us from the ignorant acts of our elected officials and the consequences of these acts on the taxpayers and residents.

[ED NOTE: Some of our references in preparing this article]

Public Officers: Traps for the Unwary
Office of the Attorney General (2004)
page 3 Common Law Conflict of Interest Meyers v. Walker
pages 32-47 Dual Office Holding

Texas Government Code TITLE 5. SUBTITLE B. Ethics
Chapter 574. Dual Office Holding

DOCUMENTS ONLINE
Ordinance Declaring Municipal Officers
Smith City Secretary Contract
Smith Oath Affirmation Fire Chief
Smith Oath Affirmation Code Enforcement
Holloway Oath Affirmation City Secretary
Holloway City Secretary Contract
Burns Oath Affirmation Building Official
Burns Building Official Contract
Kemp Oath Affirmation Police Chief
Kemp Police Chief Contract