Case Information
*1 The Attorne,y General of Texas Se~ptember 11. 1986
JIM MAlTOX
Attorney General us. Peggy Rosson Opinion NO.JM+Q Supreme Court Bullding P. 0. BOX 12543 Chairman Austin. TX. 7971% 2549 Re: Authority of the Executive Public Utility Commkision 5121475-2501 of Texas Direc,tor .of the Public Utility Telex 9101574.1357 7800 Shoal Creek Blvd., Suite 400N Comnlission Telecopier 512f475-0255
Austin, Texas 7875:' 714 Jackson. Suits 700 Dear Ms. Rosson: Dallas, TX. 7520245M 214l742-8944
You ask severa:. questions about the role of the executive head of 4824 Alberta Ave.. Suite 160 El Paso, TX. 79905-2793 [91515333484] the Public Utility Commission [hereinafter "PCC"]. Specifically, you ask: 1. Wall it the intent of the legislature in
creating the position of executive director that /wl Tsxss. Suite 700 the executive director be the executive head of ,ston. TX. 77002.3111 the Public Utility Commission? ,13/2235885
2. If so, what is the scope of the authority, responsib::l.ity and duties of the executive head of
BOB Broadway, Suits 312 the Public Utility Commission? In particular, Lubbock. TX. 794gl.3479 905i747-5235 what authority do the commissioners have to
delegate to the executive director authority for 4309 N. Tenth. Suite B McAllsn, TX. 78501-1555 [5126924547] carrying out administrative functions necessary for the duty to day operation of the commission? Section 8 of the Public Utilities Regulatory Act (PUILQ, article 200 Main Plszs, Suite 4W San Antonio, TX. 792012797 [5122254191] 1446c, V.T.C.S.. contains provisions regarding employees of the PUC: Sec. 8. (a) The commission shall employ such
officers, administrative law judges, hearing exa- miners, investigators, lawyers, engineers, econo- An Equal Opportunity/ mists, consultants, statisticians, accountants, Afflrmatlvs Action Employer administriltive assistants, inspectors, clerical
staff, ani other employees as it deems necessary to carry out the provisions of this Act. All employees receive such compensation as is fixed by the legis:.ature.
(b) ns! commission shall employ the following: (1) grexecutive director; p. 2495 *2 Ms. Peggy Rosson - Page 2 (.Rl-542)
(2) a director of hearings who has wide experience in 11t111ty regulation and rate determination;
(3) a chief engineer who is a reg:;:;;;z engineer and ar. expert in public
engineering and rate matters;
(4) a chief accountant who is a certified public accountaM experienced in public utility accounting;
(5) a director, of research who. is experienced in the conduct of analyses of industry, economics, energy, fuel, and other related matters that the commission may want to undertake;
(‘5) a director of consumer affairs and public information;
(7) a director of utility evaluation; (8) a director of energy conservation; and (9) a general counsel.
(c) The general counsel and his staff are responsible for the gathering of information relating to all natters within the authority of the emission.
The duties of 1:h:e general counsel include: (1) accumulatj.on of evidence and other information from public utilities and from the accounting and technical and other staffs of the commission and from other sources for the purposes specified herein;
(2) preparation and presentation of such evidence before i:he commission or its appointed examiner in proce~!dings;
(3) conduct of investigations of public utilities under 1:he jurisdiction of the com- mission;
(4) preparation of proposed changes in the rules of the comm:tssion;
Ms. Peggy Rosson - Page 3 (Jh-542)
(5) preparation of recommendations that the commission undertake investigation of any matter within its author:lt:y;
(6) preparation of recommendations and a report of such staff for inclusion in the annual report of the commission;
(7) protectlou and representation of the public interest and coordination and direction of the preparation amd presentation of evidence from the comnission staff in all cases before the commission as necessary to effect the objectives and purposes stated in this Act and ensure protection of the public interest; and purposes stated in this Act and ensure protection of the public interest; and such other activities as are reasonably (8)
necessary to enab1.e him to perform his duties. (d) The commission shall employ administrative law judges to preside at hearings of major import- ance before the cosmission. An administrative law P judge must be a licensed attorney with not less
than five years' general experience or three years' experience Ln utility regulatory law. The administrative la18 judge shall perform his duties independently frolr the cornmission. The coomnission and parties who nosy appear before the commission may not communicate with an administrative law judge concerning any issue of fact or law in a contested case that has not been finally decided by the commission, except on notice and opportun- ity for all parties to participate.
(e) The executive director or his designee shall develop _ ,%I11 intraagency career ladder program, one par: of which shall be the intra- agency posting of;111 nonentry level positions for at least 10 days TIefore any public posting. The executive director-or his designee shall develop a system of annual performance evaluations based on measurable job tasks. All merit pay for com- mission enployeee-must be based on the system established under This section.
(f) The execulzJve director or his/her designee shall prepare ar.d maintain a written plan to assure implemenGi:ion of a program of equal P employment oppor&nity whereby all personnel
transactions are-made without regard to race, *4 Ms. Peggy Rosson - Page 4 (JM-542)
-, color, disability,-sex. religion, age, or national origin. The plans shall include:
(1) a comprehensive analysis of all the agency's work for-e by race, sex, ethnic origin, class of position, and salary or wage:
(2) plans for recruitment, evaluation, selec- tion, appointmentI training, promotion, and other personnel policies;
(3) steps reamnably designed to overcome any identified unden~tilization of minorities and women in the agency's work force; and
(4) objectiver, and goals, timetables for the achievement of t,be objectives and goals, and assignments of responsibility for their achieve- ment.
The plans shal,l be filed with the governor's office within 60 days of the effective date of this Act, cover sn annual period. and be updated at least annually. Progress reports shall be submitted to the rovernor's office within 30 days of November 1 and April 1 of each year and shall include the steps tthe agency has taken within the reporting period to COrnplY with these requirements. (EnLphasis added).
Your first question :ts whether the legislature intended the executive director provid~zd for in section 8(b)(l) to be the "executive head" of the PubHc Utilities Commission. Since "executive head" has no precise meaning outside of a particular context, we assume you are asking whethar the position of executive head of the PUC was intended to be com!?srable to a position such as director of the Texas Department of Corrections. See V.T.C.S. art. 6166j (provides that TDC shall deLlagate to the director authority to manage the affairs of the prison sys;tem). In other words, we assume that you are asking whether the legislature intended the executive director to be the chief administrative employee of the PUC.
Section 8(f) of PURA Ilets out specific duties of the executive director of the PUC. Those :specific duties do not make the executive director the chief administrative employee df the PUC. Rather, they require him to "prepare and maintain" plans for various personnel policies. If the legislature had intended to mandate that the exec- utive director be the chief administrator of the PUC, it could have easily done so. Cf. V.T.C.!:. art. 6166j. Because the legislature did not do so, we mustconclude that PURA does not require that the exec- utive director be the chief administrative employee of the PUC.
‘3 , 2490
Me. Peggy Rosson - Page 5 (,JM-542)
You also ask whether the commissioners may delegate to the executive director the task of carrying out the day-to-day administra- tion of the PUC.
Section 8(e) of PURA ,mts out certain specific duties that the executive director must perjiorm. Also, the commissioners may, if they choose. delegate to the executive director the ministerial and administrative tasks involvoil in managing the day-to-day activities of the PUC. Although acts invo:.ving official discretion must be performed by the body designated by law, administrative or ministerial acts may be delegated to others. The authority to hire new personnel or to purchase supplies, for example, may be delegated to the executive director or to any divisior chief listed in section 8 of art. 1446~. Attorney General Opinion NCIS. WW-66 (1957); M-663 (1970). See also Attorney General Opinion V-350 (1947) (discussion of distinction between discretionary and m:.nisterial acts). Therefore, although PURA does not require that the ex,ecutive director be the chief administra- tive employee of the PUC, the commissioners may delegate that role to the executive head, as lone; as they do not delegate responsibilities that involve the exercise cf discretion, or that the legislature has placed elsewhere.
SUMMARY Section 8 of thei PURA does not require that the executive director of the Public Utility Commission be the chief administrative employee.
The commissionerrr may, however, delegate any administrative or ministerial tasks to the execu- tive director tha: the legislature has not placed elsewhere.
Very truly yoursj 1 /In +- I LJ JIM MATTOX Attorney General of Texas JACK RIGETOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General