Untitled Texas Attorney General Opinion ( 1963 )

Mr. D. F. Smallhorst Opinion No. C-174 Executive Secretary Texas Water Pollution Control Re: Various questions concern- Board ing the construction of Austin 5, Texas Article 7621d, Vernon's Civil Statutes. Dear Mr. Smallhorst: You have requested the opinion of this office on a number of questions concerning the construction of Article 7621d, Vernon's Civil Statutes (State Water Pollution Control Board Act). The questions will be stated and answered in the order in which they were submitted. "(1) Does the personal representative of an ex-officio member of the Board, while engaged in the discharge of official Board duties on behalf .of and as authorized by'such member, stand in the place and stead of such member for purposes of attending, participating in and voting on matters arising at Board meetings and hearings?" Section 3(d) of Article 762ld, Vernon's Civil Stat- utes, reads as follows: "Each ex-officio member of the Board listed in paragraph (c) above, is authorized to delegate to a personal representative from his office the authority and duty to represent him on the Board, but by such delegation a member shall not be re- lieved of responsibility for the acts and decisions of his representative." Under Section j(d) of Article 7621d, as quoted above, a personal representative of an ex-officio member would stand in the place of the ex-officio member for the purposes of Board duties. This is evident from the language of the statute and from the provision which places responsibility for the.acts and decisions of the personal representative on the ex-officio mem- ber. If the personal representative could not act in the place of the ex-officio member there would be no need for the placing of responsibility. -852- Mr. D. F. Smallhorst, page 2 (C-174) "(2) If an ex-officio member of the Board is delegated the authority to take testimony in a hearing called by the Board, as authorized by Section 4(d), paragraph (21, . e e may such mem- ber delegate to a personal representative from his office the authority and duty to represent him for the purpose of taking testimony at such hearing?" Section b(d)2 of Article 7621d reads as follows: l'(d) The Board is hereby authorized to: "(2) delegate to one (1) or more of its members or to one(l) or more of its employees `` the authority to take testimony in any hearing called by the Board with power ~to administer oaths, but all orders entered shall be made by and in the name of the Board after its official action and attested to by the Executive Secre- tary;" Section b(d)2 of Article 7621d, as quoted above, states that the Board is authorized to delegate authority to a member or employee to take testimony in a hearing called by the Board. From the wording of the statute, the authority must be given by the Board to the person actually taking the testi- mony at the hearing. This would preclude an individual member making a delegation of authority to take testimony at a hearing. The authority to take testimony must be given by the Board di- rectly to,the person who,is to take the testimony. ‘“(3) May the Board in delegating authority to take testimony in a hearing called by the Board, as authorized by said SeCtion 4(d), paragraph (21, make such delegation to a named ex-officio member and further authorize such member to delegate such authority to a personal representative from his office?" Section k(d)2 of Article 7621d, as quoted earlier, does not give the Board the power to delegate to one of its ,members the appointment power of the Board with respect to hear- ing officers or persons to take testimony at a hearing called by the Board. It therefore follows that a delegation of author- ity to take testimony at a Board hearing must be made by the Board itself. -853- .. . . ’ Mr. D. F. Smallhorst, page 3 (C-174) "(4) Is the duly authorized personal rep- resentative of an ex-officio member of the Board entitled to be reimbursed from funds available for the purposes of Article 7621d for his actual and necessary travel and other expenses incurred in the discharge of official Board duties as such personal representative, to the same extent that the ex-officio member would be so entitled?" Section j(e) of Article 7621d, reads as follows: ltActualand necessary travel and other ex- penses incurred by the three (3) ex-officio mem- bers in the discharge of their official duties as members of the Board shall be paid out of any funds which are or may become available for the purposes of this Act. Employees of the Board shall receive their necessary traveling expenses while traveling on the business of the Board." Section 3(e) provides for the payment of the travel- ing expenses for the ex-officio members and the employees of the Board and makes no mention of the expenses of the personal representatives of such ex-officio members. In view of this language, the statute must be.construed as applying to the ex- offidio members and employees of the Board only. The personal representative would not be entitled to receive travel expenses under Section 3(e) of Article 7621d. "(5) Are the moneys in Fund 273 expended under operational control of Budget 49 funds of the Board or expendable by the Board?" The facts concerning Fund 273 as set out in your opin- ion request are as follows: "To qualify for Federal funds under Public Law 660, it is necessary for the qualifying agency to develop a water pollution control program satis- factory to the Public Health Service, account for expenditures of Public Law 660 funds, and perform other functions relative to the administration of the program. Because of the limited staff author- ized and available to the Board, the Board, which is itself eligible to qualify for such Federal funds, by resolution requested the State Department of Health, which in the years prior to the estab- lishment of the Board was the agency qualifying for -854- . . Mr. D. F. Smallhorst, page 4 (C-174) such funds, to meet or continue to meet all requirements and to apply for and receive Federal funds for water pollution control ac- tivities in the State for the 1962 and 1963 Federal fiscal years. A sin.iilarresolution was adopted for the 1964 and 1965 Federal fis- cal years. . . . At the request of the Board, the Health Department also furnishes fiscal and accounting services for the Board, as au- thorized by Section 3(h) of Article 7621d, thereby relieving the Board of the necessity of employing personnel to perform such serv- ices a The F'uhlicHealth Service funds together with other Federal moneys are delivered period- ically in a single Federal warrant made pay- able to the Treasurer of the State of Texas.~ Upon the advice of the State Department of Health, the Federal water pollution control moneys are set up by the Comptroller in two' funds. One of these is Fund 153, which also receives moneys trans~ferredto the Board from other State agencies under Section 3(i) of Ar- ticle 76216. This fund is recognized by the Comptroller as a Board fund. The other is Fund 273, which is a Health Department fund, recog- nized as such by the Comptroller. However, part of the money in Fund 273 is reserved by the Health Department for the Board to finance some of the Board's operations, and these expenditures are made under an operating control budget known as Budget 49. . . .'I According to the facts submitted, the moneys in Fund 273 are grants from the Federal Government to the Health Depart- ment based on the qualifications and application of the Health Department. The funds are carried by the Comptroller as Health Department funds. Even though these moneys are budgeted to the Board by the Health Department, they are still Health Depart- ment funds until they are paid over to the-Board. The moneys.in Fund 273 under Budget 49 would not be considered funds of the Board and would not be expendable by the Board. "(6) Would a person on the staff of the Board whose salary is paid from Fund 273 under Budget 49 and who is subject to the supervision of the Executive Secretary of the Board, but who is also considered by the Health Department 'as an employee of that agency for retirement, armal -855- Mr. D. F. Smallhorst,'page 5 (C-1.74) leave and other purposes of personnel policy, be an 'employee' of the Board for the purpose of being eligible.tO have delegated to him the authority to take testimony in a hearing called by the Board, as authorized by said Sec- tion 4(d), paragraph (211" As stated in your question, the person‘would be paid from Health Department funds, would be considered by the Health Department as thelr.empIoyee;forpersonnel @urposes; and would also~be considered an employee of the Health Department for re- tirement and annual leave. Under the facts as stated, the per- son.would be a Health Department employee and not an employee of the Board. '_ "(7) Would a member of the staff of the Board whose salary is paid from Fund 153 and who is subject to the supervision of the Executive ``~ Secretary of the Board be an 'employee' for such purpose?" :.: The moneys in Fund 153 are Board funds, so'if a per- son was paid by the Board, was subject to the supervision of the Executive Secretary, and was hired under personnel policies of the Board, the 'person would be en employee of the Board for purposes of Article 7621d. "(8) Would a person retained as a profes- sional consultant under authority of Section 3(h) of the Act and compensated from.Fund 153 be an 'employee' for such purposes?* Normally a professional consultant is not considered an employee, but is considered an independent contractor. If the consultant IS compensated on a retainer or fee basis and if he is not subject to supervision in the details of his work, he would be considered as an independent contractor. Section 3(h) of Article 7621d reads, in part, as fol- lows: II . . . the Board may employ end compensate with funds available therefor professional con- sultants, assistants and employees that may be necessary. . . .I' Section 3(h), quoted in part above, draws a distinc- tion between professional consultants and employees and since -856- .i _ . I, . * Mr. D. F. Smallhorst, page 6 ' (C-17k)~'-':"' Section 4(d)~2deals with employees and members only, the Legis- lature must have,intended to carry out this distinction with regard to authority to take testimony~at its hearings. It fol- lows that a professional consultant could not be considered an "employee" for purposes~of Section b(d)2 of Article 7621d. SUMMARY Under Section 3(d) of Article 7621d of Vernon's Civil Statutes, a personal representative of an ex- : 'officio member of the Board,would stand in the place of the ex-officio member for the purposes of Board duties. .Under Section 4(d)2j the'authority to take testimony must be given by the Board directly to the person who is to take the testimony, Section 3(e) provides for the payment of the traveling expenses .~for the ex-officio membersand employees of the Board only and does not apply to their personal re resenta- 'tives. The moneys in Fund ,273 under Budget I: 9 would not be considered funds of the Board and would not be expendable by the Board. A person paid from Health ``X.Department funds:and considered .by the Health Depart- .. -:-me& as their employee for purposes of personnel ;q)olicy, retirement,,and annual leave-would notbe an ,:' employee of the Board,for purposes of Section 4(d>2. A person paid from Board funds, hired under Board per- sonnel policy, and subject to the control and supervi- sion of the Executive Secretary of the Board would be a Board employee for purposes of Section 4(d)2. A professional consultant would not be considered an em- ployee for purposes of Section &(d)2,of Article 7621d. Yours very truly, WAGGONER CARR .Attorney General a4Auh fz%oma- 2 1' BY Jack G. Norwood JGN:wb Assistant APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman .~GordonAppleman 'Jerry drock Cecil Rotsch APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone -857-