      .




                       The Attorney               General of Texas
                                         April    16,    1980
MARK WHITE
Attorney General


                   Ms. Mable Staton                             Opinion No. NW-17 3
                   Executive Secretary
                   Texas Board of Licensure For                 Re: Whether        members     of the
                    Nursing Home Administrators                 Board of Licensure For Nursing
                   P. 0. Box 9706                               Home        Administrators         may
                   Austin, Texas 78766                          participate     in     certain   trade
                                                                association activities.

                   Dear Ms. Staton:

                          You inquire whether ex-officio members of your board can be paid the
                   per diem and actual expenses provided for in section 4(3) of article 4442d,
                   V.T.C.S.     Section 3 of article       4442d, V.T.C.S., requires   that the
                   Commissioner of Human Resources, or his designee, and the Commissioner
                   of Health, or his designee, be ex-officio members of the board. Section 4(3)
                   of article 4442d, V.T.C.S., provides in part that “Board members shall
                   receive a per diem of $25.00 while engaged in Board business together with
                   actual and necessary expenses.”

                           Article 4442d, V.T.C.S., makes no distinction between ex-officio and
                   regular board members with respect to payment of expenses. We believe ex-
                   officio    members are to receive expenses and per diem unless the
                   Constitution prevents them from doing so. Article XVI, section 40 of the
                   Texas Constitution, which prohibits one person from holding two civil offices
                   of emolument, does not bar a state employee from holding a civil office of
                   emolument.      See Letter Advisory No. 30 (1973). Article XVI, section 40 of
                   the Texas Constitution, permits a nonelective state officer to hold other
                   nonelective offices under the state, if the other office is required by state
                   law. He may receive compensation for the second office, if the provisions
                   of article 625%9a, V.T.C.S., are complied with. See also Attorney General
                   Opinion H-5 (1973). If the legislature &sires to prohibit receipt of per diem
                   by these officials, it may enact a statute to that effect.

                          You also request our opinion about whether a board member violates
                   article 4442d, section 3A(l), V.T.C.S., if he receives compensation from a
                   trade association for teaching a continuing education seminar or other
                   course for nursing home administrators.        Article 4442d, section 3A(l),
                   V.T.C.S., provides in part that “A member of the board . . . may not: (a) be
                   an officer, employee, or paid consultant of a trade association in the nursing




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Ms. Mable Staton    -   Page Two     (NW-1731



home industry.” This article is based on the same policy considerations forbidding any
state employee from accepting other employment which might impair his independence of
judgment in the performance of his official duties. See V.T.C.S. art. 6252-9b. It appears
as though the legislature has determined that sang         as an employee of a trade
association in the nursing home industry might impair a board member’s independence of
judgment. A board member who receives compensation from a trade association might
not be as independent as the legislature requires; therefore, board members may not
accept any employment from trade associations, including teaching positions.

       The legislature has not spoken specifically to whether board members can serve as
unpaid advisors or directors of trade associations.      We believe section 3A(l) of article
44424 V.T.C.S., prohibits a board member from serving as a director of a trade
association in the nursing home industry even if he receives no compensation for that
service. Section 8(b) of article 6252-9b, V.T.C.S., prohibits a state officer or employee
from accepting other employment which might impair his independence of judgment in the
performance of his official duties. Whether this provision bars a particular activity, such
as that of an advisor, is a fact question to be decided by the Texas Board of Licensure for
Nursing Home Administrators.      -See Attorney General Opinion H-1223 (1978).
      Finally, you request our opinion about whether the National Association of Boards of
Examiners For Nursing Home Administrators is a trade association. This Association is
generally composed of members of agencies that examine, license or register Nursing
Homes and their administrators.     “In general use the words ‘trade associations’ convey the
meaning of an association of employers in the same trade.” People ex rel. Padula et al v.
Hughes, 16 N.E.2d 922, 924 (Ill. App. Ct. 1938). In the context of this statute it &es not
appear that this national association of regulators is a trade association.    The board must
still consider as a question of fact’ whether association with or employment by this
association would impair a board member’s judgment in his official duties under article
6252-9b, V.T.C.S.

                                      SUMMARY

           The ex-officio members of the board may receive per diem and
           actual expenses. A member of the Board should not accept any
           sort of payment for services rendered from a trade association in
           the nursing home industry.     Board members may not serve as a
           director or other officer of these associations, but they are not
           absolutely barred from acting as unpaid advisors as long as their
           independence     is not jeopardized.     Whether article   6252-9b,
           V.T.C.S., prohibits unpaid service as an advisor must be determined
           by the board on a case by case basis. The National Association of
           Boards of Examiners For Nursing Home Administrators         is not a
           trade association under article 4442d. V.T.C.S.




                                             MARK     WHITE
                                             Attorney General of Texas




                                              p.   551
Ms. Mable Staton    -   Page Three     (NW-1731



JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Peter Nolan
and Susan Garrison
Assistant Attorneys General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Susan Garrison
Rick Gilpin
Peter Nolan




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