Untitled Texas Attorney General Opinion ( 1983 )

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
p. 399