Untitled Texas Attorney General Opinion ( 2000 )

OPFKE OF THEATTORNEY
GENERAL.SWTL OFTEXAS
JOHN CORNYN
October 24,200O
The Honorable Frank Madla Opinion No. JC-0298
Chair, Intergovcmmental Relations Committee
Texas State Senate Re: Whether a person who is employed
P.O. Box 12068 outside the service area of a local workforce
Austin, Texas 78711 development board may represent the
private sector on the board, and related
question (RQ-0240-JC)
Dear Senator Madla:
Section 2308.255 of the Government Code requires that appointments to a local workforce
development board “reflect the ethnic and geographic diversity ofthe workforce development area.”
TEX. GOV’TCODEANN. 5 2308.255(b)(2) (V emon 2000). In addition, board members who represent
the private sector “must reasonably represent the industrial and demographic composition of the
business community.” Id. 5 2308.256(b). You ask whether a person who is not employed within
the local workforce service area is, for that reason alone, ineligible to represent the private sector on
a local workforce development board.’ The person is not ineligible.
You also ask whether the board must, in the midst ofher term, replace a board member who
is not employed within the local workforce service area, “as she no longer meets the requirements
for service on the Board.” Request Letter, note 1, at 1. This question assumes that, because the chair
is “not currently employed in the local service area,” she is no longer eligible to serve on the board.
Id. Our response to your first question negates that assumption, and so we do not address your
second question.
Your questions concern the Alamo Workforce Development, Inc. Board, which “operates
state programs in Bexar and its surrounding counties.” Id. Many of the facts about the person you
specifically ask about are disputed,* and we cannot resolve the dispute. See Tex. Att’y Gen. Op. No.
‘See Letter from Honorable Frank Madla, Chair, Intergovernmental Relations Committee, Texas State Senate,
to Honorable John Comyn, Texas Attorney General (June 6, 2000) (on tile with Opinion Committee) [hereinafter
Request Letter].
?%e Legal Memorandum from Rachel Lender (Oct. 14, 1999) at 1, attached to Request Letter, sup-a note 1;
Letterfrom Kay Peck, Chair, Alamo Workforce Development, 1~. Board, to Honorable John Comyn, Texas Attorney
General (July 25, 2000); Letter from J. Randel (Jerry) Hill, General Counsel, Texas Workforce Commission, to
Honorable John Comyn, Texas Attorney General (Aug. 18,200O) [hereinafter Workforce Commission Letter]; Letter
from Rachel J. Lemler & Bettye J. Hill, Lemler & Assocs., P.C., to Honorable John Comyn, Texas Attorney General
(continued...)
The Honorable Frank Madla - Page 2 (JC-0298)
JC-0020 (1999) at 2 (“[IInvestigation and resolution of fact questions cannot be done in the
opinion process.“); DM-98 (1992) at 3 (“[Q] ues t’
ions of fact cannot be resolved in the opinion
process.“). Rather, we answer only the legal question you pose.
The Alamo Workforce Development, Inc. Board is a local workforce development board
created for the Alamo Workforce Development Area under section 2308.253 of the Government
Code.’ See TEX. GOV’T CODE ANN. 5 2308.253 (Vernon 2000). Part of the Workforce and
Economic Competitiveness Act (the “Act”), section 2308.253 authorizes the chief elected officials
in a workforce development area to create a local workforce development board to plan and oversee
delivery ofworkforce training and services and to evaluate workforce development in the area. See
id. 5 2308.253(a); see also id. $5 2308.251 (defining board), ,252 (designating workforce
development areas).
The chief elected officials also appoint board members. Under section 2308.255, each
appointment must comport with applicable local agreements and with federal and state law. See id.
5 2308255(b)(2). We presume that the appointment of a person who is not employed within a local
workforce service area is not inconsistent with any applicable local agreement. See id. And, because
the Secretary of Labor has considered the criteria used for appointment of local board members, we
do not address whether federal law requires a result that differs from state law. See 29 U.S.C.
$5 2822,2832 (Supp. IV 1998). We consider only the Act.
Under section 2308.256 of the Government Code, a board comprises representatives of the
private sector, of organized labor, of community-based organizations, and of various other sectors,
such as educational agencies, vocational rehabilitation agencies, and local literacy councils. See
TEX. GOV’T CODEANN. 5 2308256(a) (Vernon 2000). Each appointment to the board must “reflect
the ethnic and geographic diversity of the workforce development area.” Id. 5 2308,255(b)(2).
Private-sector representatives must satisfy additional statutory requirements. First, a private-sector
representative must either own a business, be the chief executive officer or chief operating officer
of a nongovernmental employer, or be a private-sector executive who bears “substantial management
or policy responsibilities.” Id. 5 2308.256(a)(l)(B). S econd, private-sector representatives must be
nominated and selected to represent the business community:
Private sector representatives on the board are selected from
individuals nominated by general-purpose business organizations that
have consulted with and received recommendations from other
business organizations in the workforce development area. The
nominations and the individuals selected from the nominations must
reasonably represent the industrial and demographic composition of
the business community. Not less than one-half of the business and
(Aug. 14,200O) [hereinafter Lemler & Hill Letter] (all documents on file with Opinion Committee)
‘See Peck Affidavit 7 2 (Aug. 14,2000), attached to Lemler & Hill Letter, supa note 2
The Honorable Frank Madla - Page 3 (JC-0298)
industry representatives must be, if possible, representatives of small
businesses, including minority businesses.
Id. 9 2308.256(b).
As a matter of law, a person is not ineligible to serve as a private-sector representative on a
board solely because the person is employed outside the workforce development area. Nothing in
the Act mandates that a private-sector representative must be employed within the local workforce
area. Rather, each appointment must “reflect the ethnic and geographic diversity of the workforce
development area” and must “reasonably represent the industrial and demographic composition of
the business community.” Id. $5 2308.255(b)(2), .256(b). This office cannot determine whether a
particular appointment reflects the diversity and the industrial and demographic composition of the
workforce development area.
Relevant regulations are consistent with section 2308.256 and our interpretation of it. Title
40, section 801,1(g)(2)(C) of the Texas Administrative Code contains the regulatory counterpart to
the statutory requirements for private-sector representatives:
(i) Private sector members shall be owners of business
concerns, chief executives, chief operating officers of nongovem-
mental employers, or other private sector executives who have
substantial management or policy responsibility. No more than 10%
of the board membership should be composed of private sector
representatives who employ fewer than five employees.
(ii) Private sector membership should represent the composi-
tion of the local pool of employers. The private sector membership
should include representatives of the region’s larger employers and
emerging growth industries. Primary consideration should be given
to private sector employers who do not directly provide employment
and workforce training services to the general public. CEOs must
develop a profile of the area’s major industries using locally obtained
information and state published data. The [Texas Workforce]
Commission will provide relevant labor market information,
including data which identify employment trends, emerging and
growth industries, the size of local employers, and other data needed
to assist CEOs in developing the employer profile. Documentation
submitted with the application must show how the regional employer
profile is reflected in the board membership.
40 TEX. ADMIN. CODE 5 801.1(g)(2)(C)(i), (ii) (2000) (Tex. Workforce Comm’n, Locals Workforce
Development Boards). You suggest that subsection (ii) mandates that a private-sector representative
must be locally employed. See Request Letter, supra note 1, at 1. In its letter to us, however, the
Workforce Commission correctly points out that subsection (ii) states that the private-sector
The Honorable Frank Madla - Page 4 (JC-0298)
membership “should represent,” in the first sentence, and “should include,” in the second sentence.
See Workforce Commission Letter, supra note 2, at 2. The Workforce Commission contends that
“[t]he term ‘should’ in the context ofthe Commission’s rules[] is a permissive statement, not to be
confused with the imperative or mandatory nature of ‘must,’ which is used in other provisions ofthe
section in question.” Id. at 2; see, e.g., 40 TEX. ADMIN. CODE 5 8Ol,l(g)(2)(C)(iii). This
construction comports with the common understanding of the word “should.” See XV OXFORD
ENGLISHDICTIONARY 150, 154-55, sense 18 (2d ed. 1989) (defining “shall”). Moreover, the rule
cannot require that an individual board member be employed within the workforce development area
when section 2308.255 of the Government Code does not. An agency rule may not impose burdens,
conditions, or restrictions that exceed or are inconsistent with relevant statutes. See Tex. Att’y Gen.
LO-98-029, at 2; see also Tex. Att’y Gen. Op. No. H-1065 (1977) at 3 (stating that State Board of
Morticians has no jurisdiction of its own members’ qualifications).
Given that the person you describe is not, as a matter of law, ineligible for appointment to
the Alamo Workforce Development, Inc. Board, we do not consider your second question, which
assumes that the person is ineligible to serve on the board.
The Honorable Frank Madla - Page 5 (JC-0298)
SUMMARY
Under state law, a person who is employed outside the service
area of a local workforce development board is not, for that reason
alone, ineligible to serve as a private-sector representative on the
board.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee