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The Attorney General of Texas May 19, 1986 JIM MATTOX
Attorney General Opinion No. JM-495 Me. Peggy Rosson
Supreme Court Suildlng P. 0. S ,0x 12548 Chairman Austin, TX. 78711.2543 Public Utility Co~mclssion of Texas Re: Extent to which former 512,475-2501 employee of the Public Utility 7800 Shoal Creek Iloulevard, 400N Telex 9101874-1367 Austin, Texas 711757 Commission of Texas may par- Telecopier 512475-0268 ticipate in business before the commission 714 Jackson. Suite 700 Dallas, TX. 752024503 Dear Ms. Rosson: 214f7428944 You indicate that an employee in the Public Utility Commission's 4S24 Alberta Ave., Suite 160 engineering divis:ton left the employ of the commission in March, 1985, El Paso. TX. 79905.2793 for employment aith MCI Comsmnications. The employee inmoediately 915l533-3464 thereafter became involved in a proceeding before the commission on behalf of his new employer. Before leaving the employ of the commission, the c~ployee was involved in this same .proceeding. You 1001 Texas, Suite 7CU Houston. TX. 77002.3111 ask whether this 'Tattern of conduct constitutes a violation of section 713l22369SS 6(j) of article Wi6c. V.T.C.S., the Public Utility Regulatory Act. As a prelimixlry matter, in opinions rendered under article 4399, 605 Broadway. Suite 312 V.T.C.S., this office decides questions of law -- not disputed Lubbock, TX. 79401.3479 SW747.5239 questions of fact. You submitted copies of a transcript of the record in a particular administrative proceeding. We cannot comnent on whether the individual in the case you present has In fact violated 4309 N. Tenth, Suite S section 6. This kind of assessment would require a factual judgment. McAllen, TX. 78501.1685 We can comment on:ly on the scope of section 6 and provide you with 512/582-4547
general guidance qon what actions would, depending on proof of the 200 Main Plan. suite 4w San Antonlo. TX. 78205-2797 [5120254191] allegations in court, constitute a violation. Section 6(j) :provides: Durin:g the time a commissioner or employee of
An Equal OpportunitYI the consission is associated with the commission Altirmatlve Action Employer or at say time after, the commissioner or employee may not represent a person, corporation, or other business entity before the commission or a court in a matter in which the commissioner or employee was perzonally involved while associated with the commis&n or a matter that was within the commis- sioner's or employee's official responsibility while tge commissioner or emulovee was associated with the cormoission. (Emphasis added).
Ms. Peggy Rosson - Page 2 (JM-495)
You seek guidance on whst constitutes "representing" an employer.
In specific, you ask:
[i]s it a violation of section 6(j) for a former employee to enter an appearance on the record for an absent attorne:r in a case on which the employee worked while at t:he commission, if the employee otherwise does nothing on the record for his new employer?
You note that "the former employee did little mare than announce present for the absent al.torney." Your question suggests a very limited interpretation of t,he term "represent," i.e., that it refers only to substantive appearances on the record. -
A full understanding of section 6(j) requires examination of the related subsection which prlxedes it. Section 6(i) provides:
No commissionec shall within two years, and no employee shall, within one year after his employ- ment with the colmdssion has ceased, be employed by a public utility which was in the scope of the commissioner's 01: employee's official responsi- bility while thi: commissioner or employee was associated with t'vr commission.
This subsection restricts, for one peer, employment of a former commission employee by a pu',:Lic utility which was in the scope of the employee's official responsibility. See Attorney General Opinion JM-280 (1984). Subsection 6(i) is not Gted to "representation" of the utility; it restricts, for one year, a 11 employment by the public utility.
In contrast, sectio~n 1;l.j) applies without regard to time limits but applies only to "representation" in specific matters before the commission. Moreover, section 6(j) is not limited to "public utilities" but includes ",a person, corporation, or other business entity." Thus, the focus of section 6(j) is on all aspects of particular matters before tha- = commission (1) in which the employee was personally involved or (2,) over which the employee had official responsibility while associated with the commission.
Moreover, "represent" in subsection 6(j) is not limited to substantive appearances on the record. We believe that the legisla- ture intended section 6(j) t,o reach all aspects of particular matters
1. You do not ask nor do we address whether or not MCI Communications is a "p&UC utility" under section 6(i). Our reference to section 6(i) is for purposes of comparison only.
Ms. Peggy Rosson - Page 3 (34-495)
which are before the comr~ission and which the employee was either personally involved in wh:;le associated with the commission or over which the employee had official responsibility. Accordingly, section 6(j) reaches any aspect 09 particular matters, i.e., those requiring any agency action, in whic'x the employee interacxn any manner with the commission on behalf 01: his new employer. For example, subsection 6(j) applies to appearances of a former employee as an expert on behalf of the employee'rr new employer during an administrative proceeding before the comtd.ssion. An appearance on the record in a formal proceeding, however, is not necessary to incur a violation of section 6(j). Section 6(j) reaches particular "matters," not just particular proceedings. Thus, "represent" may also reach interactions such as letters and telep'v,ne conversations about past, pending, or future proceedings.
SUMMARY Section 6(j) of article 1446c, V.T.C.S., the Public Utility Regulatory Act, prohibits a former employee of the Public Utility Commission from interacting with the commission on behalf of the employee's new employer in any matter before the commission in ,Jllich the employee was either personally invo:lved while associated wirh the commission or OVW: which the employee had official responsibility.
Very l-J truly your .&- MATTOX JIM Attorney General of Texas JACKBIGHTOWER
First Assistant Attorney Gl~leral
MARY KELLER
Executive Assistant Attornlry General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General