                                                 The Attorney       General of Texas
                                                                November 10, 1983
   JIM MATTOX
   Attorney General



   Supreme      Court Bullding                 Mr. Charles K. Winston, Jr.            Opinion No. m-93
   P. 0. Box 12548                             Executive Director
   Austin. TX. 76711. 2546                     Automated Information systems          Re:    Whether the Automated
   5121475.2501
                                                  Advisory Council                    Information Systems Advisory
   Telex    9101674-1367
   Telecopier     51214750266
                                               P. 0. Box 13564                        Council   may  prohibit   its
                                               Austin, Texas   78711                  employees from taking outside
                                                                                      employment
   714 Jackson.    suite 700
   Dallas,   TX. 75202.4506
   214,742.6944
                                               Dear Mr. Winston:

                                                    You have asked whether the Automated Information Systems Advisory
   4624 Alberta           Ave.. Suite    160   Council [hereinafter AISAC] may prohibit its employees from taking
   El Paso. TX.           79905-2793           outside employment. Your specific questions are as follows:
   915/533-3464

                                                         Can a policy be set that an employee will not be
,-‘X          Texas,    Suite 700                        allowed to hold another job without the approval
         .ms,on.     TX. 77002-3111                      of the executive director? Can an agency have a
       7131223-5886                                      policy that an employee may not hold another job,
                                                         while working for them?
       606 Broadway,         Suite 312
       Lubbock.     TX.    79401-3479               AISAC was created in 1981. Acts 1981, 67th Leg., ch. 737, at
       6061747-5238                            2701; V.T.C.S. art. 4413(32h). The only references to AISAC employees
                                               in this law are the following:
       4309 N. Tenlh. Suite B
       McAlle”.     TX. 78501-1665
                                                            [3.] (b) A member of the council or employee
       5121662-4547                                      of the council may not be interested in, or in any
                                                         manner connected with, any contract or bid for
                                                         furnishing any state governmental body with
       200 Man    Plaza. Suite 400
                                                         automated informatior! systems, the computers on
       San Antonio.    TX. 762052797
       5121225~4191
                                                         which they are automated, or a service related to
                                                         the automation of information systems or the
                                                         computers on which they are automated. A member
       An Equal       Opportunity/                       or employee of the council may not be employed by
       Affirmative      Action     Employer              any state governmental body as a consultant on
                                                         automated information systems, the computers on
                                                         which they are automated, or a related service. A
                                                         member or employee of the council, under penalty
                                                         of dismissal, may not accept or receive from any
                                                         person, firm, or corporation to whom any contract
                                                         may be awarded, directly or indirectly, by rebate,
                                                         gift, or otherwise, any money or other thing of




                                                                       p. 396
&Jr.Charles K. Winston, Jr. - Page 2   (x4-93)




          vahe,    and  may   not   receive any promise,
          obligation, or contract for future reward or
          compensation from any such party.

             .   .   .   .

             8. The council may employ persons necessary
          for it to perform its functions.

     The threshold question in this instance is whether the AISAC
possesses statutory authority to adopt the suggested policies.
Administrative agencies have "only such powers as are expressly
granted to [them] by statute together with those necessarily implied
from the authority conferred or duties imposed." Stauffer v. City of
San Antonio, 344 S.W.Zd 158, 160 (Tex. 1961). Because the authority
to adopt the proposed policies has not been expressly conferred upon
the AISAC, we may conclude that this authority exists only if it is
among the "powers. . . necessarily implied from the authority
conferred or duties imposed" upon this agency. -Id.

     The AISAC is authorized to "employ persons necessary for it to
perform its functions." V.T.C.S. art. 4413(32h), §8. In our opinion,
a necessary concomitant of the authority to employ persons needed by
an agency to perform its duti,es is the power to adopt reasonable
employment policies calculated to insure the achievement of this
objective. If the AISAC adopts the suggested policies and those
policies are subsequently challenged, we cannot guarantee that a court
would find them to be reasonable; whether or not a particular policy
is "reasonable" obviously depends upon a variety of factors including
the scope of policy, the justification for the policy, and i~tseffect
upon those it reaches. At the same time, however, we cannot conclude
that the suggested policies would be found unreasonabl~eas a matter of
law. If the policies are carefully drafted and an adequate showing of
need for them can be made, we believe that they would be found to be
authorized under the agency's implied powers.

     The next question is whether the suggested policies would pass
constitutional muster.    In Gosney v. Sonora Independent School
District, 603 F.2d 522 (5th Cir. 1979). the court of appeals for the
Fifth Circuit dealt with a blanket prohibition against outside
employment to which the schcol district had subjected its employees.
Although the court found that the rule had not been uniformly applied,
and hence contravened the equal protection clause, it also held that
the policy did not deny the employees substantive due process. It
stated:

          [W]e find that such a rule, tested by the standard
          of rationality, Williamson v. Lee Optical of
          Oklahoma, 348 U.S. 483, 487-88, 75 S.Ct. 461, 99




                             p. 397
Mr. Charles K. Winston, Jr. - Page 3        (JM-93)




          L.Ed. 563 (1955), is reasonably related to the
          legitimate state interest in assuring that public
          school   employees   devote   their   professional
          energies to the education of children. The policy
          takes steps to effectively remove from school
          employees the temptation to drain professional
          efforts into the furtherance of their own business
          interests on the rational premise that persons
          engaged in outside businesses will tend to have
          less time and interest and to be less responsive
          to the demands of their jobs than they would were
          school teaching or administration their sole
          occupation. The fact that the policy does not
          determine on an individualized, more precise basis
          whether the employee was in fact devoting his or
          her energies substantially to the school system
          does not mean that the objective of assuring such
          professional   commitment was     not   rationally
          furthered by the no-outside-employment rule.
          (Footnote omitted).

Id. at 526.

     Just as we cannot make a conclusive determination regarding the
"reasonableness" of the suggested policies, we cannot guarantee that
the policies would be found constitutional under the Gosney test.
;cJ~~J;,establishes that, if challenged on substantive due process
          a blanket prohibition   against  outside employment can be
upheld if it can be shown to be reasonably related to some legitimate
governmental interest. Thus, whether the AISAC could successfully
defend the suggested policies against constitutional attack would
depend upon whether it could articulate a legitimate governmental
interest in promulgating the policies and whether it could demonstrate
that the particular policies in question are reasonably related to
that interest. An example of a policy that would, in our view,
clearly pass muster under this test would be one that only prohibits
outside employment that would create a conflict of interest. A policy
authorizing outside employment with the approval of the executive
director could also be successfully attacked if it did not contain
adequate standards to guide the director in the exercise of his
discretion. Finally, as in Gosney, the policies could be successfully
challenged if misapplied.

                             SUMMARY

             AISAC policies prohibiting employees from
          taking outside employment or prohibiting them from
          doing so without the approval of the executive




                               p. 398
Mr. Charles K. Winston, Jr. - Page 4    (JM-93)




          director would not be unreasonable or unconstitu-
          tional as s matter of law.




                                        JIM     MATTOX
                                        Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
David Brooks
Nancy Sutton
Bruce Youngblood




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