Attorney General Opinion JM-0188

JIM MATTOX Attorney General Supreme Court Building P.O. Box12548 Aus!in, TX, 79711- 2549 5121475-2501 Telex 910/874-1367 Telecopier 512/475-0266 714 Jackson, Suite 7W Dallas. TX. 75202-4506 2141742-8944 4824 Alberta Ave., Suite 160 El Paso, TX. 79905-2793 9151533.3464 ,pv Texas, Suite 700 ,w.ton, TX. 77002-3111 7131223-5886 606 Broadway, Suite 312 Lubbock, TX. 79401-3479 8061747-5238 43w N. Tenth, Suite B McAllen, TX. 78501-1685 5121082-4547 200 Main Plaza, Suite 400 sari Antonio, TX. 78205-2797 51212254191 *n Equal Opportunity1 Affirmative Action Employer The Attome), General of Texas Au;;ust 13, 1984 Honorable Lloyd Doggett Texas State Senate P. 0. Box 12068, Capttol Station Austin, Texas 78711 Opinion No. JM-188 Re : Whether the Texas Depart- ment of Human Resources may prohibit workers from per- forming court ordered social studies on their own time Dear Senator Doggett: YOU have requested an opinion on the validity of a policy of the Texas Department of Human Resources under which its child protective service workers aru prohibited from performing court ordered social studies on their o&n time in disputed custody suits, even though the department has no of'ficial relationship with the parties involved in the proposed study. The existence of a conflict of interest in dual employment is s question of fact which ordinarily must be determined by the agency on a case-by-case basis, but we believe the department may find that a coni'lict of interest exfsts for all of its employees who would compete gfth the department for appointments and revenue under sections 11.12 and 11.18(c) of the Family Code or would perform services which may luwe other adverse affects on the department. Section 11.12 0:: the Family Code provides, in pertinent part: (a) In a suit affecting the parent-child relationsh:.p, the court may order the preparation of a social study into the circumstances and condition of the child and of the home of any person ut:eking managing conservatorship or possession of the child. (b) Tht: social study may be made by any state 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 ,?:actice is 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,on to 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 child welfare b%ds, councils of government, 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 - Pa3.3 4 (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,1 by 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,t may 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.te state interest. See Bishop V. Wood, 426 U.S. 341 (1976); The Borl,d of R~egents of 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. .J I 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