Ms. Jo King McCrorey                  Opinion No. JM-719
Executive Director
State Board of Barber Examiners       Re: Whether members and employees
1300 E. Anderson Lane                 of the State Board of Barber
Bldg. C, Suite 275                    Examiners may engage in certain
Austin, Texas   78752                 activities without creating a
                                      conflict of interest

Dear Ms. McCrorey:

     On behalf of the State Board of Barber Examiners, you ask several
questions about potential conflicts of interest. Your first question
is whether it would be a conflict of interest for the board to examine
one of the board members for licensure.

     Article 6252-9b. V.T.C.S., sets standards of conduct for state
officers and employees. Section 1, of article 6252-9b. 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
          strennthen the faith and confidence of the oeoole
          of Texas in their state government, there ire
          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 perfor-
          mance 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 dis-
          cipline of those who refuse to abide by its terms.
          (Emphasis added).

See also V.T.C.S. art. 6252-9b, 98 (specific standards of conduct);
art. 8407a, 529B(b) (restrictions on members of the Board of Barber
Examiners). Whether a particular activity violates article 6252-9b is
usually a question of fact, which cannot be resolved in the opinion



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process. See Attorney General Opinion H-1288 (1978). In this case,
however, weconclude that as a matter of law it would conflict with a
board member‘s discharge of his duties as a member of the Board of
Barber Examiners if he took an examination administered by the board.

     The Texas Barber Law, article 8407a, V.T.C.S., provides for a
six-member Board of Barber Examiners:

             The State Board of Barber Examiners is hereby
          created and shall consist of six members.appointed
          by the governor with the advice and consent of
          the senate. The board shall be composed of the
          following: two members shall be Class A barbers
          actually and actively engaged in the practice of
          barbering for at least five years prior to being
          appointed and while serving as members of the board
          and who are not holders of a barber shop permit
          issued by the board; one member shall be a barber
          shop owner holding a permit issued by the board
          and who is actively and actually engaged in the
          practice of barbering for at least five years prior
          to being appointed and while serving as a member of
          the board; one member shall be a person holding
          a permit from the board to conduct or operate a               1
          barber school or college; and two members shall be
          representatives of the general public who are not
          regulated under this Act and who do not have, other
          than as consumers, any financial interests in
          barbering. The terms of office shall be for six
          years with terms for two of the six board members
          expiring at the same time every two years. All
          members appointed by the governor to fill vacancies
          in the board caused by death, resignation, or
          removal shall serve during the unexpired term of
          such member's predecessor. Before entering upon
          the duties of office, each member of the board
          shall take the constitutional oath of office and
          file it with the secretary of state. Members of
          the board may be removed from office for cause in
          the manner provided by the statutes of this state
          for public officials who are not subject to im-
          peachment.   In case of death, resignation, or
          removal, the vacancy of the unexpired term shall be




     1. Your question raises another issue. Two board members must
be persons not regulated by the board. If one of those members became
                                                                        ?
licensed as a barber, the board would no longer be duly constituted.
See generally Attorney General Opinion JM-578 (1986).



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    Ms. Jo King McCrorey - Page 3   (JM-719)
L

r

              filled by the governor in the same manner as other
              appointments. (Emphasis added).

    V.T.C.S. art. 8407a. 626(a).

         The preparation and administration of licensing and certification
    examinations is one of the main duties of the State Board of Barber
    Examiners. The board administers several different types of examina-
    tions. It administers examinations to persons who wish to become
    licensed as Class A registered barbers, V.T.C.S. art. 8407a. 57; to
    persons who wish to become certified as barber teachers, V.T.C.S. art.
    8407a, 69(f); and to persons who wish to obtain certain speciality
    licenses, such as manicurist licenses or wig specialist licenses,
    V.T.C.S. art. 8407a. 5915 through 17.

         The purpose of the board's examinations is to determine whether
    the rxaminee has the knowledge and skill necessary to the relevant
    license or certification. See art. 8407a. $97, 9(b), 11(a), 14(b),
    15(d), 16(d), 17(d). The board could not fairly test the competence
    of an examinee who knew in advance the contents of the examination.
    Therefore, if a board member were to take an examination, he would not
    be able to participate in the preparation of the examination. Cf.
    V.T.C.S. art. 6252-9b. 16(a). Furthermore, if the board member had
    participated in the preparation of previous examinations, the board
    would not be able to re-use questions from these examinations. -   See
    generally Open Records Decision Nos. 353 (1982); 118 (1976).

         Because taking an examination administered by the board would
    preclude a board member from participating in one of the board's most
    important tasks and could work a hardship on the entire board, it
    would be in substantial conflict with the board member's discharge of
    his public duties. We conclude, therefore, that a board member would
    violate the policy set forth in article 6252-9b by taking a licensing
    or certification examination given by the board. Furthermore. an
    appointed state officer must take an oath promising to faithfully
    execute the duties of his office. Tex. Const. art. XVI, 61. Taking a
    board examination would place a board member in a position in which he
    would not be able to fulfill that oath. See also V.T.C.S. art. 5967
    (state officers may be removed for good cause). Therefore, a member
    of the State Board of Barber Examiners may not take a licensing or
    certification examination given by the board.

         You also ask whether a barber inspector, a board employee, may
    engage in certain activities related to barbering. We must consider
    your questions about board employees not only in light of the policy
    and standards set out in article 6252-9b. but also in light of
    conflict-of-interest provisions in the barber licensing statute,
    article 8407a. Section 27a, which was added to article 8407a in 1967,
    provides:




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            (a) No barber inspector or other employee of
         the State Board of Barber Examiners may sell
         barber supplies or engage in any other business
         which deals directly with barbers, barber shops,
         or barber schools except that he may engage in the
         practice of barbering.

             (b) Violation of this section is a mis-
          demeanor, and upon conviction is punishable by a
          fine of not more than $5.000, or by confinement in
          the county jail for not more than two years, or
          both.

Section 29B. which was added in 1979, provides in part:

             Sec. 29B. (a) An employee of the State Board
          of Barber Examiners whose duties include the
          administration of the board's functions under this
          Act may not:

             (1) have, other than as                   a   consumer,   a
          financial interest in barbering;

             (2)  be an officer, employee, or paid con-
          sultant of a trade association in the barbering
          industry; or

             (3) be related within the second degree by
          affinity or within the second degree by con-
          sanguinity to a person who is an officer,
          employee, or     paid   consultant of  a trade
          association in the barbering industry.

                .   .   .   4




             (c) An employee who violates this section is
          subject to dismissal. . . .

     Before we can address your specific questions, we must address
whether section 27a has been impliedly repealed.         It has been
suggested that section 29B impliedly repealed section 27a because
section 29B(a). the later enactment, is a comprehensive prohibition on
conflicts of interest and is more restrictive than section 27a.

     Implied repeals are not favored. Standard v. Sadler, 383 S.W.2d
391 (Tex. 1964). If, by any reasonable construction, two acts can be
construed so that both can stand, one will not be held to repeal the
other. Cunningham v. Henry, 231 S.W.2d 1013 (Tex. Civ. App. -
Texarkana 1950, writ ref'd n.r.e.). We think that the statutes in
question can be harmonized to some extent, but we conclude that
section 27a has been impliedly repealed to the extent that it



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affirmatively allows barber inspectors to. engage in the practice of
barbering.

     Section 29B applies to any board employee whose duties include
the administration of the board's functions and provides that such an
employee may not have any financial interest in barbering other than
as a consumer. An employee who violates section 29B is subject to
dismissal. Section 27a applies to all board employees and provides
that an employee may not "sell barber supplies or engage in any other
business which deals. directly with barber shops, or barber schools
except that he may engage in the practice of barbering." An employee
who violates section 27a is subject to criminal penalties. We
construe those statutes together to mean that an employee who violates
the stricter standard of section 29B is subject to dismissal but not
criminal prosecution. An employee who violates both sections would
be subject to criminal prosecution under section 27a as well as
dismissal under section 29B(c). Section 27a affirmatively states,
however, that a barber inspector "may engage in the practice of
barbering." That provision conflicts with section 29B(a)(l), which
prevents a barber inspector from having a financial interest in
barbering other than as a consumer. Because section 29B is a later
enactment, we think that it repeals the clause in section 27a that
provides that a barber inspector may engage in the practice of
barbering. -See Wright v. Broeter, 196 S.W.2d 82. 85 (Tex. 1946).

     We now turn to your specific questions. You ask whether a barber
inspector may take a course at a barber college during his off-duty
hours. You also ask whether an inspector may take a .course at a
college located in his inspection territory or at a college owned by a
board member. The prohibitions set out in article 8407a. section 27a,
are not applicable to your question. Furthermore, although barber
courses may ultimately lead to employment or other financial rewards,
enrollment in a barber course is only an indirect and fairly remote
financial interest in barbering. We conclude that such an indirect
interest is not within the scope of the prohibition set out in section
29B. Cf. V.T.C.S. art. 6252-9b, 91 (prohibiting financial interest,
direct>     indirect, that are in substantial conflict, with state
employment).    The remaining issue, then, is whether a barber
inspector's enrollment in a barber college would be in substantial
conflict with the discharge of his duties as a barber inspector in
violation of article 6252-9b.

     Article 6252-9b provides that a state employee shall have no
interest, financial or otherwise, that would be in substantial
conflict with the discharge of his duties. Id. §l. We cannot say
that a barber inspector's enrollment in abarber         college would
necessarily be in substantial conflict with his duties as a barber
inspector. In this case, then, as in most cases, the determination
of whether a substantial conflict exists is a question of fact.
Therefore, the board must examine the facts of the case in question to
determine whether a substantial conflict exists. We do note, however,



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that an inspector's enrollment in a barber college that he is
responsible for inspecting is more likely to create a substantial
conflict of interest than enrollment in some other barber college.
See generally V.T.C.S. art. 6252-9b.

     You next ask whether the board may examine for licensure one of
its own employees -- presumably the barber inspector in question.
Article 8407a. section 27a. is not applicable to your question. Nor
do we think section 29B is applicable to your question since taking a
licensing .examinationis not a direct financial interest in barbering.
Again, then, the issue is whether the conduct in question violates
article 6252-9b. You do not suggest how taking a board examination
might be in substantial conflict with a board employee's duties.
Therefore, we cannot even speculate on whether a conflict exists. For
employees who have a role in the preparation or administration of the
examination, a conflict would exist if those employees had access to
examination questions before the examination. We cannot say, however,
that there is necessarily a conflict between being a board employee
and taking a board examination.

     Your final question is whether a barber inspector may be employed
as a part-time teacher at a barber college. Article 8407a, section
29B, provides that a board employee whose duties include the adminis-
tration of the board's functions may not have a financial interest in    ?
barbering other than as a consumer. Inspecting barber schools is
one of the board's functions. V.T.C.S. art. 8407a. 428(a). Because
a barber inspector's duties include administration of that board
function, a barber inspector is subject to che.prohibitions set out in
section 29B. Teaching barbering leads directly to financial gain
because a teacher in a barber college receives a salary for teaching
barbering. We conclude, therefore, that a barber teacher has a
"financial interest in barbering" for purposes of article 8407a.
section 29B. Consequently, a barber inspector may not be employed as
a part-time teacher in a barber college.

                                SUMMARY

              A member of the State Board of Barber Examiners
         may not take a licensing or certification examina-
         tion offered by the board. Board employees subject
         to article 8407a. section 29B, may not work as
         teachers at barber colleges.




                                            JIM     MATTOX
                                            Attorney General of Texas




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JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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