Untitled Texas Attorney General Opinion ( 1973 )

THE A-ITORNEY GENER.\L
OFTEXA~
roanr L. aILL
AII~TIN.TISXA~ 78711
A-- cI~A%
July 27. 1973
The Honorable Herbert C. McKee, Chairman Opinion No. H- 71
Texas Air Control Board
820 East 53rd Street Re: Quertions concerning
Austin, Texas 78751 the application and
constitutionality of
Article 62 52 -9, V. T. C. S.
(Acts 1957)
Dear Mr. McKee:
You have requested our opinion concerning the application and consti-
tutionality of Article 6252-9, V. T. C. S. (Acts, 1957) and particularly $ 3(l)
thereof relating to standards of conduct as that section may apply to members
of the Texas Air Control Board.
Section 2.02 of Article 4477-2 requires that one of ‘the nine members be
a professional engineer with at leaot ten years experience in the actual
practice of his profession including work in air control; one shall be a
licensed physician currently engaged in general practice with experience
in the field of industrial medicine; one shall be engaged in the management
of a private manufacturing or industrial concern for at least ten years;
one shall be experienced in the field of municipal government; one shall be
an agricultural engineer with at least ten years in his profession; and the
remaining four shall be chosen from the general public. Board members
receive no salary but do receive $25 for each day in attendance at meetings
or hearings or on authorized business of the Board and reimbursement for
travel and other necessary expenses (§ 2.05).
You were appointed to the Board in 1966 to fill the space allocated
to the professional engineer with experience in the air pollution field.
You have asked that we answer five specific questions, which are:
p. 307
Honorable Herbert C. McKee, page 2 (H-71)
Is Section 3(i) of Article
“1. 6252-9
(1957 Act) constitutional?
“2. Is Section 3(i) of Article 6252-9
constitutional as applied to members of the
Texas Air Control Board serving pursuant
to the Texas Clean Air Act (V. A. C. S.,
Article 4477-5) and proceedings under which
these members were appointed by the Exe-
cutive and confirmed by the Senate?
“3. Can the present members of the
Texas Air Control Board continue to serve
in this capacity?
“4. If the answer to No. 3 is yes, can
such a Board member avoid a substantial con-
flict within the intent of the Declaration of
Policy contained in Section I of the 1957 Act
if he disqualifies himself on any items of
business pertaining to companies or other
entities with which he has significant busi-
ness and/or professional association?
“5. In addition to the procedure speci-
fied in No, 4, is any other action required by
such a Board, member in order to avoid any
conflict of interest which would be in violation
of the 1957 Act or any other applicable statute? ”
Article 6252-9 as enacted in 1957 (Acts 1957, 55th Leg., p. 213,
ch. 100) declared the policy of the state in $1 as follows:
“Section 1. It is hereby declared to be
the policy of the Legislature that no officer or
employee of a state agency, Member of the
Legislature or legislative employee should have
any interest, financial or otherwise, direct or
indirect, or engage in any business or trans-
action or professional activity or incur any ob-
p. 308
The Honorable Herbert C. McKee, page 3 (H-71)
ligation of any nature which is in substantial
conflict with the proper discharge of his
duties in the public interest. To implement
such policy and to strengthen the faith and
confidence of the people of Texas in their
Government, there is herein enacted a code
of ethics setting forth standards of conduct
to be observed by state officers and employ-
ees in the performance of their official duties.
It is in the intent of the Legislature that this
code shall serve not only as a guide for official
conduct of the State’s public eervants but also
as a basis for diecipline of those who refuse to
abide by its terms. ”
Section 2 contained definitions. The “Standards of Conduct I’ of
5 3 include 5 3(i), the primary section giving rise to your inquiries, and
which reads as follows:
“(i) No officer or employee of a state
agency nor any firm, association, corporation
or other business entity in which he is a mem-
ber, agent, or officer, or in which he owns a
controlling interest, shall sell goods or services
to any person, firm, association, or corporation
which is licensed by or regulated in any manner
by the state agency in which such officer or em-
ployee serves. ”
Section 4 provided that the failure of any officer or employee of a State
agmcy, etc., to comply with the standards which apply to him “shall
constitute grounds for expulsion, removal from office, or discharge,
whichever is applicable. ”
In 1971 the 62nd Legislature attempted to amend Article 6252-9 by
adopting the so-called 1971 Ethics Bill (Acts 1971, 62nd Leg., Regular Session,
Ch. 962, p. 2906). Its statement of policy was the same. It had, in its $ 4,
standards of conduct, and had a similar provision that failure to comply
would constitute grounds for expulsion, removal from office, or discharge.
It went further in that it required financial statements of certain State officers
p. 309
The Honorable Herbert C. McKee, page 4 (H-71)
and employees, called for the creation of a State Ethics C ommirrion, etc.
However, the 1971 Act was declared unconstitutional by the opinioor of this
office in Attorney General’s Opinion M-1039 (1972) which in part w:; in
answer to questions from your office. Having held the 1971 Act unconsti-
tutional, the opinion looked to the 195’i Act, and particularly S 3(i), upheld
the constitutionality of that section, and stated that whether members of
the Air Control Board may have dealings with companies regulated by the
Board “must first be determined by the employing State agency . . . . ‘I
Finally, the 63rd Legislature, in House Bill No. 1, effective January
1, 1974, repealed the 1.957 Act and enacted the 1973 Ethics Code. It
contains the same declaration of policy. Pertinent to your questions is
5 6 which provides in subsection (a):
“This section applies only to an elected or
appointed officer who is a member of a Board or
a Commission having policy direction over a state
agency, excluding officers subject to impeachment
under Article XIV, $ 2 of the Texas Constitution.
If such an officer has a personal or private interest
in any measure, proposal, or decision pending
before the Board or Commission, he shall publicly
disclose the fact to the Board or Commission in a
meeting called and held in compliance with the
Open Meetings Law (Art 6252-17, Vernon’s Texas
Civil Statutes) and shall not vote or otherwise par-
ticipate in the decision. The disclosure shall be
entered in the minutes of the meeting. ”
The remaining subsections of 5 6 contain definitions and provisions for
removal in the event the required disclosure is not made.
Section 8 of the 1973 Bill cont.ains its “standards of conduct” which are
fewer in number than in either the 1957 or 1971 Acts. Pertinent to your
inquiry are subsections b, c and e which are as follows:
“(b) No state officer or state employee should
accept employment or engage in any business or
p. 310
The Honorable Herbert C. McKee, page 5 (H-71)
professional activity which he might r,earonably
expect would require or induce him to disclose
confidential information acquired by reason of his
official position.
‘l(c) No state officer or state employee should
accept other employment or compensation which
could reasonably be expected to impair his indepen-
dence of judgment in the performance of his official
duties.
‘l(e) No state officer or state employee should
intentionally or knowingly solicit, accept, or agree
to accept any benefit for having exercised his
official powers or performed his official duties
in favor of another. ‘I
No penalty is provided in the 1973 Act for violation of the standards of conduct.
The authority of the Legislature of the State of Texas is plenary.
Government Services Insurance Underwriters v. Jones, 368 S.W.2d 560
(Tex. 1963). It may enact any law which is not prohibited either by the
Constitution of the State or of the United States. Shepherd v. San Jacinto
Junior College District, 363 S.W.2d 742 (Tex. 1962); Oser v. Cullen, 435
S.W.2d 896 (Tex. Civ. App., Houston, 1969). Undoubtedly it has the power
to determine the public policy of the State and to set standards of conduct
for governmental officials so long as those standards do not inhibit the
performance of any constitutional duties. As we said in Attorney General
Opinion H-15(1973) dealing with House Bill 1 of the 63rd Legislature as
originally proposed:
“In setting standards with which all persons
entrusted with public responsibility must comply,
the Legislature does not encroach upon the consti-
tutional prerogatives of the other branches of the
government; it acts in their aid, as well as its
own, to promote public confidence in the integrity
of all branches of the government.
p. 311
The Honorable Herbert C. McKee, page 6 (H-71)
“So long as the Legislature does not interfere
with the discharge by the other branches of their
constitutional duties no constitutional problem
reaultr. State Board of Insurance v. Betts, supra
[ 308 S.W.2d 846 (Tex. 1958)l. Requiring ethical
deportment uniformly required of all other public
servants can be no unwarranted burden. Nor can
requiring disclosure of relevant financial matters
be condemned out of hand. And, it has always been
a legislative function to define crimes and set punish-
ments. ” (p. 65)
Neither the 1957 nor the 1973 ethics law purports to deal with qualifications
for office. It is not unusual for acts creating regulatory boards to require
as a qualification for board membership, qualifications which potentially
involve conflicts of interest. For instance, the Texas Cosmetology Com-
mission (Article 734c, Vernon’s Texas Penal Code); the State Board of Barber
Examiners (Article 734a, § 26, Vernon’s Texas Penal Code); the Texas Optom-
etry Board (Article 4552-2. 01, Vernon’s Texas Civil Statutes) and numerable
others. Potential conflicts of interest do not disqualify persons from member-
ship. See our Letter Advisory No. 13 (1973) with reference to the membership
of tenants as commissioners of a housing authority.
Our answers to your specific questions therefore are as follows:
(1) Sec. 3(i) of Art. 6252-9, the 1957 Act, is constitutional as a
proper legislative regulation of the conduct of public officers.
(2) Since 5 3(i) of Article 6252-9 governs the conduct of officials
after their appointment,it does not conflict in any way with statutes
determining the qualifications of those to be appointed such as Article
4477-5, Vernon’s Texas Civil Statutes, prescribing the qualifications
of members of the Texas Air Control Board.
(3) The present members of the Texas Air Control Board can continue
to serve in that capacity unless it is demonstrated that they have exceeded
the proper bounds prescribed by Article 6252-9 in any of its versions or
any other statute or comtion law rule governing the proper conduct of
public officers. Although the 1957 Act said that violation of its standards
p. 312
The Honorable Herbert C. McKee, page 7 (H-71)
of conduct would constitute grounds for removal from office, nevertheless
it provided no machinery for removal. Removal would have to be in accord-
ance u ith Article 15 of the Constitution, “Impeachment, ” and Tit;< 100 oi
Vernon’s Texas Civil Statutes entitled “Officers - Removal Of.”
House Bill 1 of the 63rd Legislature, which will be effective on January 1,
1974, provides for sanctions only in the event an officer fails to publicly
disclose a personal or private interest and provides no sanctions for failing
to a~bide by the standards of conduct.
Our answer to your third question therefore is that the members of the
Texas Air C ontrol Board, whatever the circumstances are, may continue
to serve in their present capacities until their terms expire, they retire,
or they are removed in some statutory manner.
In answer to your fourth and fifth questions, we do not believe that the
standards of conduct set out in the 1957 Act can be totally satisfied merely
by a board member disqualifying himself on items of business “pertaining
to companies or other entities with which he has significant business and/or
professional association.” For instance, and despite the liberalization of
5 3(i) by Attorney General Opinion M-1069, where an officer of a state agency
is at the same time an officer, agent, or member of or owns a controlling
interest m another business entity, under the 1957 Act he and such business
entity are prohibited from selling goods or services to another person, firm
or corporation licensed or regulated by the agency.
We underst.and, for example that your request for our opinion was prompted
in part by adverse criticism growing out of a contract between a corporation
subject to the jurisdiction of the Texas Air Control Board and Southwest
Research Institute, of which you are a director. On its face, such a contract
wouI,d not comport with the standards of conduct set out in $ 3(i) of the 1757
.4Cl. This IS not to say, however, that such fact automatically presents a conflict o
interest contrary to the public policy pronounced by the Legislature and pro-
habited by the Act. Nor do we determine that it should result in removal from
off ice. As Attorney General Opinion M-1039 held there may be circumstances
under which a literal interpretation of 5 3(i) would defeat the legislative intent
and that the section would not be given such an application. In our opinion the
finding of these facts in any given case and the application of-the law to
them to determine whether there is such a conflict of interests as to warrant
p. 313
The Honorable Herbert C. McKee, page 8 (H-71)
action are matters for those charged with enforcement of the ethics legirlation,i. e.,
the heads of agencies and district attorneys in the first instance a&Idthe Legis-
lature or the courts if removal from office is to be sought. It wo.11” be incol.
sistent with the constitutionally guaranteed rights were we to make those
determinations in the process of writing opinions.
Under the new Ethics law which becomes effective on January 1, 1974, the
propriety of such a contract would depend on whether or not it might reason-
ably be expected to require or induce you to disclose confidential information
acquired by reason of your official position or would be reasonably expected
to impair your independence of judgment in the perf0rmanc.e of your official
duties or was a benefit conferred for your having exercised your official
powers or duties in favor of another.
SUMMARY
Article 6252-9 as enacted in 1957 and as later
amended does not govern the qualification of persons
for office. Members of the Texas Air Control Board
are qualified for office if they meet the requirements
of Article 4477-5, Vernon’s Texas Civil Statutes.
Their conduct in office is’to be governed, until January
1, 1974, in part, by Article 6252-9, and thereafter by
applicable portions of the 1973 Ethics Bill, and they
may be subject to removal under appropriate pro-
cedures in the event they violate the provisions of that
Article.
Very truly yours,
A
APPROVED:
n
u Attorney General of Texas
irst Assistant
DAVID M. KENDALL, Chairman p. 314
Opinion Committee