             THE     ATTORXEY           GENERAL
                         OF     TEXAS


                             July 13. 1987




Honorable Steve W. Simmons          Opinion No.   JM-745
District Attorney
303 City-County Building            Re:    Whether a child protective
El Paso, Texas 79901                services   specialist    for   the
                                    Department of Human Services may
                                    be a foster parent for that agency


Dear Mr. Simmons:

     You &k whether a conflict of interest would exist if a child
protective services specialist of the Texas Department of Human
Services were a foster parent for the department.

    Article 6252-9b, section 1, V.T.C.S., provides:

             It is the policy of the State of Texas that no
          state officer or state employee shall have any
          interest, financial or otherwise, direct or
          indirect, or engage in any business transaction or
          professional activity or incur any obligation of
          any nature which is in substantial conflict with
          the proper discharge of his duties in the public
          interest.   To implement this policy and to
          strengthen the faith and confidence of the people
          of Texas in their state government, there are
          provided standards of conduct and disclosure
          requirements to be observed by persons owing a
          responsibility to the people of Texas and the
          government of the State of Texas in the
          performance of their official duties. It is the
          intent of the legislature that this Act shall
          serve not only as a guide for official conduct of
          these covered persons but also as a basis for
          discipline of those who refuse to abide by its
          terms.

     Article 6252-9b, section 8(c) provides:

             No state officer or state employee should
          accept other employment or compensation which
Honorable Steve W. Simmons - Page 2 (~~-745)




         could reasonably be expected to impair his
         independence of judgment in the performance of his
         official duties.

     The Department of Human Services is responsible for regulating
foster family homes as well as other child-care facilities. Hum. Res.
Code 6642.001 et seq. To fulfill that responsibility, the department
has promulgated qualifications and standards for foster parents. 40
T.A.C. 5583.231 through 83.248. See also Hum. Res. Code 541.021
(department may pay the cost of foster care in some circumstances).
Although you indicate that a child protective services specialist is
assigned to every foster child, you do not describe the specific
responsibilities of a child protective services specialist. You make
clear, however, that you are not asking whether a child protective
services specialist may be assigned to his own foster child. See
generally Hum. Res. Code P42.021 (department shall employ sufficix
personnel to fulfill its responsibility to protect children in child-
care facilities).

     In the brief you submitted with your request, you suggest several
potential conflicts of interest. You state, for example:

            Being   a   foster   parent   entails   certain
         obligations   and   responsibilities,    such   as
         attending service plan reviews, court hearings,
         and .other foster parent-related activities. A
         child protective services specialist's job is a
         full-time job that many times requires the
         specialist to work more than the usual 40-hour
         week. Problems will arise in that, as a foster
         parent, the child protective services specialist
         would have to be taking time off from his
         employment to be at meetings and other activities
         required of foster parents, thereby leading to
         interruptions of said employee's job time.

     If the department determined that a potential foster parent would
not be able to meet the needs of a foster child because of job
responsibilities or for any other reason, that person would not be
qualified to be a foster parent. See generally 40 T.A.C. 583.234. If
the "conflicts" you describe, however, were conflicts of interest for
purposes of article 6252-9b, then no state employee could be a foster
parent or, for that matter, a parent. Article 6252-9b does not
prohibit state employees from engaging in activities or hobbies that
might occasionally require them to use their leave or to be
unavailable for overtime work. Cf. Letter Advisory No. 62 (1973) (the
fact that an individual might nothave sufficient time to devote to
two public positions does not create legal incompatibility).




                               p. 3465
Honorable Steve W. Simmons - Page 3     JM-745)




     You also suggest that the interests a child protective services
specialist would have as a foster parent might affect the decisions he
would have to wake as a child protective services specialist. If a
child protective services specialist's role as a foster parent
impaired his ability to make decisions and judgments required for his
job, then a conflict of interest for purposes of article 6252-9b would
exist. The determination of whether such a conflict does exist is a
question of fact and should be determined by the department. See
Attorney General Opinions H-1223 (1978) (determination of whether:
conflict of interest exists for purposes of article 6252-9b is a fact
question that cannot be resolved in the opinion process); H-688 (1975)
(determination of whether a conflict of interest exists for purposes
of article 6252-9b must be made by body of which legislator in
question is a member); see also Attorney General Opinion H-1317 (1978)
(to the extent that rule of Department of Human Resources precludes
employee's possession of a real estate license where no conflict of
interest exists and where employee's performance is in no way
impaired, rule Is invalid).

                              SUMMARY

             The question of whether a Department of Human
          Services child protective services specialist may
          serve as a foster parent is a question of fact
          that cannot be resolved in the opinion process.




                                         JIM     MATTOX
                                         Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STRAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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