                            QMfice
                                 oftfy!&tornep
                                             &neral
                                         Qtate of ID;exas
DAN MORALES
 r\l-rORNEY
        GENERAL                            March 17,1993

     Mr. James L. Crouch                         OpinionNo. DM-209
     ExecutiveDirector
     Public utility commission                   Re: whether the hner       employee of the
     7800 Shoal Creek Boulevard                  Public Utility Conumss~
                                                                     ’ ‘on who goes to work
     Austin, Texas 78757                         for an afHiate of a qulated utility violates
                                                 nection6 of a&k 1446c. V.T.C.S. (RQ-118)

     Dear Mr. Crou&

            You ask seeral questions about the post-employment restrictions applicable to a
     Public Utility Commission (PVC) employee who resigned to work for an a5liate of a
     PUC-regulated telephone company. You state that one of his last PUC assignments was
     asprojectmanagerfbra      management audit on the regulated company. The audit was
     completed in Februaq 1991, and the employee resigned from the PUC in May 1991,
     beginning employment for the affdiate soon after. You state that the employee and the
     president of the regulated company, who was a&o president of the a5liate. apparently
     began employment negotiations while the audit of the telephone company was in progress.

             Article 1446c, V.T.C.S., the Public Utility Regulatory Act (Pm),             restricts
     certain trwsacdons between PUC employees and a5liates of public utilities. In general,
     an”~te”orM*Iffiliatedintaest”ofaplblicutilityieapaaonorentitythatcM
     subswially control the policies and actions of the pubiic utility, that is subject to being
     controlledinthiswaybythepublicutility,orthatisurdercommon                Oxltrolofthesame
     entity as the public utility. Section 3(i) of article 1446c de&s these terms as follows:
                    “A6iliatedinterest”or”~“means:
                     (1) any person or corporation owning or bold& dimctly or
               indktly,fivepercentormoreofthevotingseauitiesofapubtic
               utility;’
                     (2)anypersonorcorPorationinanychainofsucceaGve
               ownership of five percent or more of the voting securities of a public
               utility.




                                            p.   1098
Mr. James L. Crouch - Page 2        (DM-209)




               (3) 8ny wrpomtion 6ve pacent or more of the voting ssurities
         of which is owned or controlled, dir&y or indkctly, by a public
         utility;
             (4) 8ny wrporation five percent or more of the voting securhies
         ofwhichisownedorw~~~direatyorindirectly,byanypenon
         or corporation that owns or wntroh dkectly or indkdy, five
         pacmtormoreofthevotingrearritiesofMypublicutility...;
             (5) anypemonwhoisanofficerordirectorofapublicutilityor
         ofanywrpomtioninanychainof-                      ownership of sve
         percent or more of vodng aeauitk of a public utility;
             (6) anypersonorwrpomtionthatthewmmission,afkrnotice
         and heaing, determines act&y exercises any substantial influence or
         control ova the policies and actions of a public utility, or over which
         rpublicutilityexerciaessuchwntrol..     .;
             (7) any person or wyratiti        the wmmission a&r notice
         andhearingdetumines                  exacihgsuchsubstMti8l
         infium overthepolicies  andaction of the public utility . . . .

       Section 6 ofPURA prohibii various mmsactions between employees and fbrmer
~l~ofthePUContheonehand~dpublicutilitiesMdtheiratbliat~ontheother.
This section provides in part:

             6-Q No ccmmhiona or employee of the wmmission may
         dirwtlyorifdindysolicitorrequeatfiomorauggestorrewmrnwd
         to. my public utility, or to any agaq lqWen&q          attolney,
         anploye+ officer, owner, director, or partner thereoc the
         appointmenttoanypositionortheemploymentin8nycapachyof
         anypasonbysuchpublicu5ityora5lkedintaest.
              (e) No public utility or dEliated intatst....nor  any agent,
         ItpmaWq          attorney, employcq officer, owner, director, or
         paRnerofarrypublicutilityora5liatedintere&...maygivqor
         offatogive,any...anployment...wfiatsoevato~manberor
         employee of the wmmission . . . .
             . .   .

             (i) No. . . employee aha& within one year afta his employment
         with the wmmision has ceased, be employed by a public utility
         which w8s in the scope of the wmmission& or employee?305cial
         responsiiity while the wmmissiona or employee wns assoc&d
         with the wmmission.



                                    p.   1099
Mr. JamesL. Crouch - Page 3           (DM-209)




              (j)Duringthetimea       wmmissiona or en@oyee of the
          wmmissionisassocb&withthewmmissionorat~time*,
          the wmmissiona or employee may not mpmseat a paaoq
          wrporatio~~ or other business entity before the wmmission or a
          courtinamattainwhichthewmmissioneroranployeewas
          pasondyinvo~whue          asao&edwiththewmmissionora
          mattathuwaswithinthe       cxmlmhids       or employee!? official
          responsiii   while the wmmissioneroremployeewasllso&ed
          with the wmmision.
V.T.C.S. art. 1446c. 5 6.

        You 6rst ask whetha section 6(i) was violated under the facts you have provided.
Although we calmot resolve fact questions in an attorney gulaal opinios we can answer
a legal question based on facts provided to us. Attorney General Opiion JM-495 (1986).
Attorney Genersl Opiion JM-280 (1984) concluded that section 6(i) of article 1446c
applied to the employment of a former member or employee of the Public Utility
Commission by a public utility, but not to that person’s employment by en e5liated
inkrestofrpublicutility.        Acwrdingly,amumingthea5iiateinthiscaaemeetsthe
definition set out in section 3(i) of PLRA, the former employee did not violate section 6(i)
by awep6ng employmentwith that entity.

       YounartuL~itwu”l~undaKaion6(d)urd(e)fortheemployee
andthewmpMyo5catonegotiateauchM         uranganentwhiletheo5cerwespresident
ofboththew~undaauditMdthe~edw~~dtheemployeewrsthe
PUC stafFmemba in charge of the audit?”

       Section 6(d) provides that no PUlM employee may “solicit or request from or
suggest or recommend to” any 05cer of a public utility, “the employment in eny capacity
of~pcrsanbysuchpublicutilityora5liatediaterest.”             (Emphesisedded.) Inour
opinion, the proh.i.ion in section 6(d) sgainst soliciting anployment for any person
would bar a PURA employee fkom making such solicitations, requests, suggestions, or
r-mmemMonsonbehalfofhisownallployment.                IfthePURAanployeeaskedthe
o5~foremploymmtwithtbe~eormademyothaoftheproMibed
wmmmications, he violated section 6(d).

         Section 6(e) provides that no “05ca.. .ofanypublicutilityor[any]effWed
intaest.. .may givq or offa to give. [My] employment...-                         to
any...emp4oyeeofthewmmission.”          Iftheo5caoftheregu&dutilitymadefmoffa
of employment to the PUC employee while the employee worked for the PUC, the 05cer




                                     p.   1100
Mr. JamesL.Croucb - Page 4          (DM-209)




violated section 6(e).3 Whetha the PURA employee or the officcx snsllgsd in wnduct
proscrii by s&section (6)(d) or 6(e) of article 1446~is a question of fact that cumot be
fdhSSdiUMattorneygWMllOpiUiOll.

        You~Mkwhdbamyothallpplicablekanwaeviokteduadathe~
stated. YoudonotapeciQ~statutetiyouwishwtorddrrss,butwealggestttlat
youwnsider    whether   section 8 of article 6252~9b,V.T.C.S., as well as se&on 39.01 of
the Penal Cd might apply to the case you have de&x&d. Won 8 of article 6252%.
V.T.C.S.. is designed to prevent a state 05cer or employee 6vm using his 05chl position
to seek personal gain. It prohibits 05ccrs and employees hm having various private
ewnomic illtams that might influence them in their exacise of public authohy.’ see
Attorney General Opinion Jh4-587 (1986) (section 8 of article 6252-9b, V.T.C.S. provides
no tanctions for violations of its provisions).




                                    p.   1101
Mr. JamesL. Crouch - Page 5           (DM-209)




       Your mmabdng three questions are as fbllows:
              (4)Ifthescfkctshadoc~~edatIerJanwyl,l992,the
          effective date of Senate Bii 1, -;=I         Legidatun, R@ar
          sessiol& 1991. would your -          *
              (5)Towhatextent,ifany,wiUtheethicslawestabliahedio
          PURA wnhue to apply to PUC wmmissionu5 and 8taff afta the
          dfective date of Senate Bill l?
              (6) Conve&y~towhatextent,ifany,willthenewethicskW
          &Ii&d     in Senate Bill 1 apply to PUC commisrionas and staff
          8fkitSCfkUiVCdlUC?
        senatCBiulofthe72dLegiskture~~~provisionsregulatingthedhicsof
public savants.) Some of its provisions address conduct also wveted by section 6 of
article 1446c, V.T.C.S. Article 6252-9b, V.T.C.S.. adopted in 1973 to establish standards
of wmhlct for state 05cers and employces,~applies to 05cers and employees of the
PUC. Srr V.T.C.S. art. 6252-9b. 50 2(l), (S)(A)(i), o(A). (S)(A) (dcfming “state
o6ica” and “state employee”). Senate Bill 1 adopted several amendments to article
6252-9b, V.T.C.S., but most of these do not overlap with section 6 of article 1446c,
V.T.C.S. SIX V.T.C.S. art. 6252-9b. §7B (probibithg assockion of employees of
regulatory agency from sokiting anyhing of v&e hm regulated entities). Section 74
thepaendmentmostrelevanttoyouriaquiry,providesasMknvs:
              (a) A memba of the goveming body or executive head of a
          regulatoryagencymaynotmak~withtheintenttoin6ualc4My
          wmmunication to or appearance before an 05cer or employee of the
          8gencyinwhichthepason~beforethe~ud~of
          thedatethepersonccasestobeamemberofthegovaningbodyor
          cJtecukllaldoftheagency,onbehalfofmlypuaoninwmIeuion
          withanynwlaonwhichtheperaon~o5cialaction.
               (b) Aformerstateo5caoraqhyeeofareguhtoryagcq
          whoceasesserviceoremploymentwiththeagencyonorah
          January 1, 1992, may not repnsent any pason or receive
          compensation for pavices rendered on behalf of any pcmon
          ~aparticularmatterinwhichthefonnao5.caoranployee
          participated during the period of state service or employment, &her
          t&oughpasonrlinvo~entorbccausethecaseorprocesdingwrs
          a matta within the 05&s or employee’s05cial respomiibii. This


       ‘Acls 1991, M Leg. dl. 304. at 1290.

       ‘kas   1973.63d Lc& ch 421.a11086




                                       p.     1102
Mr. Jemes L. Crouch - Page 6          (DM-209)




          subsection does not apply to a rule-mahing procad@ thet was
          concluded before the 05&s or employee’s service or employment
          aared.
              (c) Subsection (b) of this section npplies only to:
              (1) asteteofficaorrregulatoryrgency,or
              (2) a state employee of a regulatory egency who is wmpen-
          sated . . . [detsils of wmpensation set out].
             (d) rjorher Iaw re.rfriUsrhr rzpresarrariar of apersonbefav a
         prtiadar staleagent @ a fonnrr stateofleer or emplqwer,       lhe
         dher &nvpr6waoverthissection.

V.T.C.S. at. 62524%. 5 7A (emphesis added).

        Swtion 6tj) of the PuRq quoted above. prohiits a forma state 05ca or
anployet f+omrrpr*renting personsbeforethePucunda-similatothose
set out in section 7A Section 6(j) applies during the time the officer or employee is
ILWC&~ with the wmmission “or at sny time a&r.” V.T.C.S. at. 1446c, 6(j). It
prohibits the wmmissiona or employee from represemmg nny “perso& wrporatig or
otba busin- entity hefore the wmmission or a wurt in a mstta in which the
wmmissiona or employee was pasonslly involved whiJe amociated with the wmmission
oramnttathntwesvdthinthewmmissi       on&s or employee!?05cinl reqxmsibiity” while
raoaaed withthe wmmission.Id. As expresslyprovided in section 7A(d) of article
62524b, section 6(j) of the PUM prevahs ova section 7A@).

        Accordiagly,~&nnotbdieveouruLIwawouldbediffantifthetrpasactions
youdescribehndouauredemirelyefkatheefktivedateofSennteBill1.            Section7Aof
article 62524b. V.T.C.S.. does not npply to the PUC. You have not identilied eny otha
provisionsofSensteBilllthatappeartownflictwithprovisionsofsection6ofthe
PUPA Amuming the ebsence of wntlicting provisions, the wmmissioners and employees
ofthePUCeresubjecttotheprovisionsofSenateBii1tothesemedegreensaestete
agency05cers and employees in geneml.

                                   SUMMARY
               Section 6(i) of article 1446c. V.T.C.S., pawides thst a fbrmer
         employee of the Public Utility Commission (PVC) may not be
         employed within one year afta leaving the commission by II public
         utilitythatwasinthcscopeofhiso5~responsibilitywhilehe
         worked for the wmmission. This prohibition does not bar a former
         employee from working for the a5liate of such public utility within a
         year afla his depature &om the wmmission.



                                      p.   1103
Mr. JamesL. Crouch - Page 7          (DM-209)




                Section 6(d) of article 1446c, V.T.C.S.. pro&bits an employee
          of the Public Utility Commission (PVC) fhm asking an 05cer of a
          regulated utility for employment with that utility or en a5liated
          intaest of the utility. Section 6(e) prohibits an 05cer of a public
          utility or a5liated interest from offering employment to any
          employee ofthe wmmission. whether any person has violated either
          of these provisions is a fact question.
               Senate Bii 1 of the 72d Legislature adopted post-employment
          restrictions on the appearance before a regulatory agency by former
          state officers sod employees of that agency. These provisions,
          cod&d as section 7A of article 6252-9b, V.T.C.S.. do not apply to
          forma state 05cers or employees iftheir represenWion of a person
          before a state agency is restricted by other law. Smce section 6(j) of
          article 1446c. V.T.C.S., places post-employment restrictions on
          appearances b&e the PUC by its forma wmmissioners and
          employees, section 7A of article 6252~9b,V.T.C.S., does not apply
          to these individuals.




                                                    DAN      MORALES
                                                    Attorney Oenaal ofTexas

WILL PRYOR
First Ass&ant Attorney General

MARYKELLER
Deputy Attorney Oenaal for Litigation

RENBAHIcKs
State Solicitor

MAD-          B. JOHNSON
Chair, Opiion Committee

Prepamd by Susan L. Garrison
At3shamAttorneyoulaal




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