Untitled Texas Attorney General Opinion ( 1984 )

The Attome), General of Texas
JIM MATTOX Au;;ust13, 1984
Attorney General
Supreme Court Building Honorable Lloyd Doggett Opinion No. JM-188
P.O. Box12548 Texas State Senate
Aus!in, TX, 79711- 2549 P. 0. Box 12068, Capttol Station Re : Whether the Texas Depart-
5121475-2501 Austin, Texas 78711 ment of Human Resources may
Telex 910/874-1367
Telecopier 512/475-0266
prohibit workers from per-
forming court ordered social
studies on their own time
714 Jackson, Suite 7W
Dallas. TX. 75202-4506
Dear Senator Doggett:
2141742-8944
YOU have requested an opinion on the validity of a policy of the
4824 Alberta Ave., Suite 160 Texas Department of Human Resources under which its child protective
El Paso, TX. 79905-2793 service workers aru prohibited from performing court ordered social
9151533.3464 studies on their o&n time in disputed custody suits, even though the
department has no of'ficialrelationship with the parties involved in
,pv Texas, Suite 700
the proposed study. The existence of a conflict of interest in dual
,w.ton, TX. 77002-3111 employment is s question of fact which ordinarily must be determined
7131223-5886 by the agency on a case-by-case basis, but we believe the department
may find that a coni'lictof interest exfsts for all of its employees
who would compete gfth the department for appointments and revenue
606 Broadway, Suite 312
Lubbock, TX. 79401-3479
under sections 11.12 and 11.18(c) of the Family Code or would perform
8061747-5238 services which may luwe other adverse affects on the department.
Section 11.12 0::the Family Code provides, in pertinent part:
43w N. Tenth, Suite B
McAllen, TX. 78501-1685
5121082-4547
(a) In a suit affecting the parent-child
relationsh:.p,the court may order the preparation
of a social study into the circumstances and
200 Main Plaza, Suite 400 condition of the child and of the home of any
sari Antonio, TX. 78205-2797
person ut:eking managing conservatorship or
51212254191
possession of the child.
*n Equal Opportunity1 (b) Tht: social study may be made by any state
Affirmative Action Employer agency, including the Texas Department of Human
Resources: or any private agency, or any person
appointed t'y the court . . . . (Emphasis added).
House Bill No. 642 of the Sixty-eighth Legislature amended
section 11.18 of the Family Code by adding subsection (c), which reads
as follows:
p. 820
Honorable Lloyd Doggett - Page 2 (JM-188)
(c) If the court orders the Texas Department of
Human Resources to prepare the social study pre-
scribed by Section 11.12 of this code, the court
shall award a reascnable fee for the preparation
of the study to the department. The department's
fee shall be taxes1 as costs, and shall be paid
directly to the department. The department may
enforce the order ior the fee in its own name.
(Emphasis added).
A conference committee for House Bill No. 642 intentionally
determined that the language If section 11.18(c) is mandatory instead
of permissive. The conference committee bill analysis and the bill's
fiscal note estimate that the bill will result in sizeable revenue
gains to the department's Welfare Administration Operating Fund, with
corresponding reductions in the state and federal funds required for
the operation of the departmwt.
The Department of Hurran Resources has the powers expressly
granted to it by statute together with those necessarily implied from
Fhe authority conferred or%lties imposed. See Stauffer V. City of
San Antonio, 344 S.W.2d 15ti, 160 (Tex. 1961). The Texas Board of
Human Resources is responsibl? for the adoption of policies and rules
for the government of the department. Human Resources Code,
521.003(a). The commissioner of Human Resources may employ personnel
necessary for the administration of the department's duties. Sec.
21.005(c). We believe that reasonable personnel policies for which
there is an adequate shox,ing of need are authorized under the
department's implied powers. Attorney General Opinion JM-93 (1983)
expressed the opinion that a necessary concomitant of the authority to
employ persons needed by an agency to perform its duties is the power
to adopt reasonable employnent policies calculated to insure the
achievement of its objective:s,
A public employee is not prohibited per se from simultaneously
holding two different state wnployments or from simultaneously holding
both state and private emptoyments. See Attorney General Opinions
JM-22 (1983); MW-415 (1981). Under theDepartment of Human Resources'
policy for dual employment, ,lN:tivity
presenting a possible conflict of
interest with the employee's job duties must be reviewed and approved
by the department. Rule 7200 of the department's personnel procedures
prescribes the following:
7200 Other Employmz:It
Department employees may wish to become involved
with employment or activities outside the
department. This ,?:acticeis generally acceptable
to the department as long as the additional
p. 821
Honorable Lloyd Doggett - Page 3 (JM-188)
employment or act,brity is compatible with the
department's work. Employees must not participate
in employment or activity that violates the
standards of condu:: as prescribed in TEX. REV.
CIV. STAT. ANN., art. 6252-9b, Section 8, known as
the ethics code.
. . . .
All requests for pxticipation in dual employment
or activities are considered on an individual
basis except that:
1. Employees of 1:he department may not hold
positions in both county and state protective
services programs.
2. Employees may not participate in those
political activit Lrss listed in Item 7112,
Political Activities Prohibited.
All other requests for participation in dual
employment or activities are carefully reviewed to
determine if they are compatible with the
employee's assign~r~l responsibilities in the
department. The duitl employment or activity may
not conflict with thz employee's relationship with
department clients, contractors, providers,
persons regulated by the Licensing Branch, or the
employee's job ir. the department. Employees
approved to partic:.pate in dual employment or
activities must nc't use clients' or licensees'
names or other infxmation from any department
files in connectior.with the part-time employment
or activity. Emp:.oyees must not use their
official position C~I identificatj,onto influence,
threaten, or coerce any person in connection with
part-time employmc!r.t. Employees approved to
engage in off-duty employment or activities must
not conduct any non-iepartmental business activity
during duty hours. The only way an employee may
conduct business f3c an outside activity during
duty hours is For the activity to be
department-related, such councils of
government, child welfare b%ds, or various
advisory boards. Thz activity must be approved at
the regional or state office level. Employees who
violate these instructions may be subject to
dismissal.
p. 822
Honorable Lloyd Doggett - Pa3.34 (JM-188)
Personnel committz~?s responsible for approving
dual employment or activity requests should
carefully consii~c
r the following outside
activities:
. . . .
9. Engaging in the independent activity of
providing court-orslered social studies. (This
type of request should be referred to the state
office Personnel C'xmnittee.)
It is not suggested tlwt Rule 7200 is per se an unreasonable
procedure for screening duct:.employment activity that may involve
conflicts of interest. The question is its present application to
certain of the department's employees. We understand that since the
effective date of section 11.18(c), the department has held that a
conflict of interest exists in all cases involving child protective
service workers who wish to perform court-ordered social studies on
their own time.
Whether a conflict of ixrerest exists is a question of fact which
ordinarily must be determine,1by the agency on a case-by-case basis in
light of the specific dutie::performed by the employee. However, E
cannot say that the departmr:r,tmay not validly determine that a con-
flict of interest exists in t?ylery
instance in which a child protective
service worker in his individual capacity competes with his employer,
the Department of Human Rescurces, for court appointments and revenue
anticipated by the departmert and the legislature under the recently
enacted section 11.18(c) of .:ile
Family Code or adversely affects other
aspects of the department, such as its anticipated workload or its
credibility if the courts cJlfuse the source of studies prepared by
workers in their individual cdtpacities.
One's right to work and earn an income, whether characterized as
a liberty or a property intexst, is a valuable right which should not
be curtailed without legitink.testate interest. See Bishop V. Wood,
426 U.S. 341 (1976); The Borl,dof R~egentsof StateColleges v. Roth,
408 U.S. 564 (1972); Perry V~ Sindermann, 408 U.S. 593 (1972); Schware
v. Board of Bar Examiners cf the State of New Mexico, 353 U.S. 232
(1957); Attorney General Opinion H-1317 (1978). It is our opinion
that a prohibition against yltside employment will be upheld by the
courts inasmuch as the prs'libition is reasonably related to the
legitimate interest of the !;tate in prohibiting outside employment
that creates a conflict of inwrest. See Gosney v. Sonora Independent
School District, 603 F.2d !i22 (5thxr. 1979); Attorney General
Opinion JM-93 (1983).
p. 823
. /,
Honorable Lloyd Doggett - Paga 5 (``-188)
,LUMMARY
The Texas Department of Human Resources may
prohibit workers from performing court-ordered
social studies on thsir own time when the workers'
dual employment creates a conflict of interest by
competing with the department for court
appointments and rwenue under sections 11.12 and
11.18(c) of the Family Code or by adversely
affecting other aspects of the department.
.JI M MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney Genersl
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Nancy Sutton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
David Brooks
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 824