Case Information
*1 QMfice of tfy !&tornep &neral Qtate of ID;exas DAN MORALES March 17,1993 r\l-rORNEY GENERAL Opinion No. DM-209
Mr. James L. Crouch ExecutiveDirector Re: whether the hner employee of the
Public utility commission Public Utility Conumss~ ’ ‘on who goes to work 7800 Shoal Creek Boulevard for an afHiate of a qulated utility violates Austin, Texas 78757
nection 6 of a&k 1446c. V.T.C.S. (RQ-118) Dear Mr. Crou&
You ask seeral questions about the post-employment restrictions applicable to a Public Utility Commission (PVC) employee who resigned to work for an a5liate of a PUC-regulated telephone company. You state that one of his last PUC assignments was asprojectmanagerfbra management audit on the regulated company. The audit was completed in Februaq 1991, and the employee resigned from the PUC in May 1991, beginning employment for the affdiate soon after. You state that the employee and the president of the regulated company, who was a&o president of the a5liate. apparently began employment negotiations while the audit of the telephone company was in progress.
Article 1446c, V.T.C.S., the Public Utility Regulatory Act (Pm), restricts certain trwsacdons between PUC employees and a5liates of public utilities. In general, an”~te”orM*Iffiliatedintaest”ofaplblicutilityieapaaonorentitythatcM subswially control the policies and actions of the pubiic utility, that is subject to being controlledinthiswaybythepublicutility,orthatisurdercommon Oxltrolofthesame entity as the public utility. Section 3(i) of article 1446c de&s these terms as follows:
“A6iliatedinterest”or”~“means:
(1) any person or corporation owning or bold& dimctly or indktly,fivepercentormoreofthevotingseauitiesofapubtic utility;’
(2)anypersonorcorPorationinanychainofsucceaGve ownership of five percent or more of the voting securities of a public utility.
Mr. James L. Crouch - Page 2
(3) 8ny wrpomtion 6ve pacent or more of the voting ssurities of which is owned or controlled, dir&y or indkctly, by a public utility;
(4) 8ny wrporation five percent or more of the voting securhies ofwhichisownedorw~~~direatyorindirectly,byanypenon or corporation that owns or wntroh dkectly or indkdy, five pacmtormoreofthevotingrearritiesofMypublicutility...;
(5) anypemonwhoisanofficerordirectorofapublicutilityor ofanywrpomtioninanychainof- ownership of sve percent or more of vodng aeauitk of a public utility;
(6) anypersonorwrpomtionthatthewmmission,afkrnotice and heaing, determines act&y exercises any substantial influence or control ova the policies and actions of a public utility, or over which rpublicutilityexerciaessuchwntrol.. .;
(7) any person or wyratiti the wmmission a&r notice andhearingdetumines exacihgsuchsubstMti8l infium over the policies and action of the public utility . . . .
Section 6 ofPURA prohibii various mmsactions between employees and fbrmer ~l~ofthePUContheonehand~dpublicutilitiesMdtheiratbliat~ontheother.
This section provides in part:
6-Q No ccmmhiona or employee of the wmmission may dirwtlyorifdindysolicitorrequeatfiomorauggestorrewmrnwd to. my public utility, or to any agaq lqWen&q attolney, anploye+ officer, owner, director, or partner thereoc the appointmenttoanypositionortheemploymentin8nycapachyof anypasonbysuchpublicu5ityora5lkedintaest.
(e) No public utility or dEliated intatst....nor any agent, ItpmaWq attorney, employcq officer, owner, director, or paRnerofarrypublicutilityora5liatedintere&...maygivqor offatogive,any...anployment...wfiatsoevato~manberor employee of the wmmission . . . .
. . . (i) No. . . employee aha& within one year afta his employment with the wmmision has ceased, be employed by a public utility which w8s in the scope of the wmmission& or employee?3 05cial responsiiity while the wmmissiona or employee wns assoc&d with the wmmission.
(j)Duringthetimea wmmissiona or en@oyee of the wmmissionisassocb&withthewmmissionorat~time*, the wmmissiona or employee may not mpmseat a paaoq wrporatio~~ or other business entity before the wmmission or a courtinamattainwhichthewmmissioneroranployeewas asao&edwiththewmmissionora pasondyinvo~whue cxmlmhids or employee!? official mattathuwaswithinthe responsiii while the wmmissioneroremployeewasllso&ed with the wmmision.
V.T.C.S. art. 1446c. 5 6.
You 6rst ask whetha section 6(i) was violated under the facts you have provided. Although we calmot resolve fact questions in an attorney gulaal opinios we can answer a legal question based on facts provided to us. Attorney General Opiion JM-495 (1986). Attorney Genersl Opiion JM-280 (1984) concluded that section 6(i) of article 1446c applied to the employment of a former member or employee of the Public Utility Commission by a public utility, but not to that person’s employment by en e5liated inkrestofrpublicutility. Acwrdingly,amumingthea5iiateinthiscaaemeetsthe definition set out in section 3(i) of PLRA, the former employee did not violate section 6(i) by awep6ng employment with that entity.
YounartuL~itwu”l~undaKaion6(d)urd(e)fortheemployee andthewmpMyo5catonegotiateauchM uranganentwhiletheo5cerwespresident ofboththew~undaauditMdthe~edw~~dtheemployeewrsthe
PUC stafF memba in charge of the audit?”
Section 6(d) provides that no PUlM employee may “solicit or request from or suggest or recommend to” any 05cer of a public utility, “the employment in eny capacity of~pcrsanbysuchpublicutilityora5liatediaterest.” (Emphesisedded.) Inour opinion, the proh.i.ion in section 6(d) sgainst soliciting anployment for any person would bar a PURA employee fkom making such solicitations, requests, suggestions, or r-mmemMonsonbehalfofhisownallployment. IfthePURAanployeeaskedthe o5~foremploymmtwithtbe~eormademyothaoftheproMibed
wmmmications, he violated section 6(d).
Section 6(e) provides that no “05ca.. .ofanypublicutilityor[any]effWed intaest.. .may givq or offa to give. [My] employment...- to any...emp4oyeeofthewmmission.” Iftheo5caoftheregu&dutilitymadefmoffa of employment to the PUC employee while the employee worked for the PUC, the 05cer *4 Mr. JamesL.Croucb - Page 4
violated section 6(e).3 Whetha the PURA employee or the officcx snsllgsd in wnduct proscrii by s§ion (6)(d) or 6(e) of article 1446~ is a question of fact that cumot be fdhSSdiUMattorneygWMllOpiUiOll.
You~Mkwhdbamyothallpplicablekanwaeviokteduadathe~ stated. YoudonotapeciQ~statutetiyouwishwtorddrrss,butwealggestttlat you wnsider whether section 8 of article 6252~9b, V.T.C.S., as well as se&on 39.01 of the Penal Cd might apply to the case you have de&x&d. Won 8 of article 6252%. V.T.C.S.. is designed to prevent a state 05cer or employee 6vm using his 05chl position to seek personal gain. It prohibits 05ccrs and employees hm having various private ewnomic illtams that might influence them in their exacise of public authohy.’ see Attorney General Opinion Jh4-587 (1986) (section 8 of article 6252-9b, V.T.C.S. provides no tanctions for violations of its provisions).
Your mmabdng three questions are as fbllows:
(4)Ifthescfkctshadoc~~edatIerJanwyl,l992,the effective date of Senate Bii 1, -;=I Legidatun, R@ar sessiol& 1991. would your - *
(5)Towhatextent,ifany,wiUtheethicslawestabliahedio PURA wnhue to apply to PUC wmmissionu5 and 8taff afta the dfective date of Senate Bill l?
(6) Conve&y~towhatextent,ifany,willthenewethicskW &Ii&d in Senate Bill 1 apply to PUC commisrionas and staff 8fkitSCfkUiVCdlUC?
senatCBiulofthe72dLegiskture~~~provisionsregulatingthedhicsof public savants.) Some of its provisions address conduct also wveted by section 6 of article 1446c, V.T.C.S. Article 6252-9b, V.T.C.S.. adopted in 1973 to establish standards of wmhlct for state 05cers and employces,~ applies to 05cers and employees of the PUC. Srr V.T.C.S. art. 6252-9b. 50 2(l), (S)(A)(i), o(A). (S)(A) (dcfming “state o6ica” and “state employee”). Senate Bill 1 adopted several amendments to article 6252-9b, V.T.C.S., but most of these do not overlap with section 6 of article 1446c, V.T.C.S. SIX V.T.C.S. art. 6252-9b. §7B (probibithg assockion of employees of regulatory agency from sokiting anyhing of v&e hm regulated entities). Section 74 thepaendmentmostrelevanttoyouriaquiry,providesasMknvs:
(a) A memba of the goveming body or executive head of a regulatoryagencymaynotmak~withtheintenttoin6ualc4My wmmunication to or appearance before an 05cer or employee of the 8gencyinwhichthepason~beforethe~ud~of
thedatethepersonccasestobeamemberofthegovaningbodyor cJtecukllaldoftheagency,onbehalfofmlypuaoninwmIeuion withanynwlaonwhichtheperaon~o5cialaction.
(b) Aformerstateo5caoraqhyeeofareguhtoryagcq whoceasesserviceoremploymentwiththeagencyonorah January 1, 1992, may not repnsent any pason or receive compensation for pavices rendered on behalf of any pcmon ~aparticularmatterinwhichthefonnao5.caoranployee participated during the period of state service or employment, &her t&oughpasonrlinvo~entorbccausethecaseorprocesdingwrs a matta within the 05&s or employee’s 05cial respomiibii. This ‘Acls 1991, M Leg. dl. 304. at 1290.
‘kas 1973.63d Lc& ch 421.a11086
Mr. Jemes L. Crouch - Page 6
subsection does not apply to a rule-mahing procad@ thet was concluded before the 05&s or employee’s service or employment aared.
(c) Subsection (b) of this section npplies only to: (1) asteteofficaorrregulatoryrgency,or (2) a state employee of a regulatory egency who is wmpen- sated . . . [detsils of wmpensation set out].
(d) rjorher Iaw re.rfriUs rhr rzpresarrariar of aperson befav a prtiadar stale agent @ a fonnrr state ofleer or emplqwer, lhe dher &nvpr6wa over this section.
V.T.C.S. at. 62524%. 5 7A (emphesis added).
Swtion 6tj) of the PuRq quoted above. prohiits a forma state 05ca or anployet f+om rrpr*renting personsbeforethePucunda-similatothose set out in section 7A Section 6(j) applies during the time the officer or employee is ILWC&~ with the wmmission “or at sny time a&r.” V.T.C.S. at. 1446c, 6(j). It prohibits the wmmissiona or employee from represemmg nny “perso& wrporatig or otba busin- entity hefore the wmmission or a wurt in a mstta in which the wmmissiona or employee was pasonslly involved whiJe amociated with the wmmission oramnttathntwesvdthinthewmmissi on&s or employee!? 05cinl reqxmsibiity” while raoaaed with the wmmission. Id. As expressly provided in section 7A(d) of article 62524b, section 6(j) of the PUM prevahs ova section 7A@).
Accordiagly,~&nnotbdieveouruLIwawouldbediffantifthetrpasactions youdescribehndouauredemirelyefkatheefktivedateofSennteBill1. Section7Aof article 62524b. V.T.C.S.. does not npply to the PUC. You have not identilied eny otha provisionsofSensteBilllthatappeartownflictwithprovisionsofsection6ofthe PUPA Amuming the ebsence of wntlicting provisions, the wmmissioners and employees ofthePUCeresubjecttotheprovisionsofSenateBii1tothesemedegreensaestete agency 05cers and employees in geneml.
SUMMARY Section 6(i) of article 1446c. V.T.C.S., pawides thst a fbrmer employee of the Public Utility Commission (PVC) may not be employed within one year afta leaving the commission by II public utilitythatwasinthcscopeofhiso5~responsibilitywhilehe worked for the wmmission. This prohibition does not bar a former employee from working for the a5liate of such public utility within a year afla his depature &om the wmmission.
Section 6(d) of article 1446c, V.T.C.S.. pro&bits an employee of the Public Utility Commission (PVC) fhm asking an 05cer of a regulated utility for employment with that utility or en a5liated intaest of the utility. Section 6(e) prohibits an 05cer of a public utility or a5liated interest from offering employment to any employee ofthe wmmission. whether any person has violated either of these provisions is a fact question.
Senate Bii 1 of the 72d Legislature adopted post-employment restrictions on the appearance before a regulatory agency by former state officers sod employees of that agency. These provisions, cod&d as section 7A of article 6252-9b, V.T.C.S.. do not apply to forma state 05cers or employees iftheir represenWion of a person before a state agency is restricted by other law. Smce section 6(j) of article 1446c. V.T.C.S., places post-employment restrictions on appearances b&e the PUC by its forma wmmissioners and employees, section 7A of article 6252~9b, V.T.C.S., does not apply to these individuals.
DAN MORALES Attorney Oenaal ofTexas WILL PRYOR
First Ass&ant Attorney General
MARYKELLER
Deputy Attorney Oenaal for Litigation
RENBAHIcKs
State Solicitor
MAD- B. JOHNSON
Chair, Opiion Committee
Prepamd by Susan L. Garrison
At3shamAttorneyoulaal