Judges: MARK WHITE, Attorney General of Texas
Filed Date: 4/16/1980
Status: Precedential
Modified Date: 7/6/2016
Ms. Mable Staton Executive Secretary Texas Board of Licensure For Nursing Home Administrators P. O. Box 9706 Austin, Texas 78766
Re: Whether members of the Board of Licensure For Nursing Home Administrators may participate in certain trade association activities.
Dear Ms. Station:
You inquire whether ex-officio members of your board can be paid the per diem and actual expenses provided for in section 4(3) of article 4442d, V.T.C.S. Section 3 of article 4442d, V.T.C.S., requires that the Commissioner of Human Resources, or his designee, and the Commissioner of Health, or his designee, be ex-officio members of the board. Section 4(3) of article 4442d, V.T.C.S., provides in part that `Board members shall receive a per diem of $25.00 while engaged in Board business together with actual and necessary expenses.'
Article 4442d, V.T.C.S., makes no distinction between ex-officio and regular board members with respect to payment of expenses. We believe ex-officio members are to receive expenses and per diem unless the Constitution prevents them from doing so. Article
You also request our opinion about whether a board member violates article 4442d, section 3A(1), V.T.C.S., if he receives compensation from a trade association for teaching a continuing education seminar or other course for nursing home administrators. Article 4442d, section 3A(1), V.T.C.S., provides in part that `A member of the board . . . may not: (a) be an officer, employee, or paid consultant of a trade association in the nursing home industry.' The article is based on the same policy considerations forbidding any state employee from accepting other employment which might impair his independence of judgment in the performance of his official duties. See V.T.C.S. art. 6252-9b. It appears as though the legislature has determined that serving as an employee of a trade association in the nursing home industry might impair a board member's independence of judgment. A board member who receives compensation from a trade association might not be as independent as the legislature requires; therefore, board members may not accept any employment from trade associations, including teaching positions.
The legislature has not spoken specifically to whether board members can serve as unpaid advisors or directors of trade associations. We believe section 3A(1) of article 4442d, V.T.C.S., prohibits a board member from serving as a director of a trade association in the nursing home industry even if he receives no compensation for that service. Section 8(b) of article 6252-9b, V.T.C.S., prohibits a state officer or employee from accepting other employment which might impair his independence of judgment in the performance of his official duties. Whether this provision bars a particular activity, such as that of an advisor, is a fact question to be decided by the Texas Board of Licensure for Nursing Home Administrators. See Attorney General Opinion
Finally, you request our opinion about whether the National Association of Boards of Examiners For Nursing Home Administrators is a trade association. This Association is generally composed of members of agencies that examine, license or register Nursing Homes and their administrators. `In general use the words `trade associations' convey the meaning of an association of employers in the same trade.' People ex rel. Padula et al v. Hughes,
Very truly yours,
Mark White Attorney General of Texas
John W. Fainter, Jr. First Assistant Attorney General
Ted L. Hartley Executive Assistant Attorney General
Prepared by Peter Nolan and Susan Garrison Assistant Attorneys General