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

Ms.Mable Staton Executive Secretary Texas Board ofLicensure For Nursing Home Administrators P.0. Box9706 Austin, Texas 78766 Opinion No. NW-173 Re: Whether members of the Board of Licensure For Nursing Home Administrators may participate in certain trade association activities. Dear Ms.Staton: Youinquire whether ex-officio members ofyour board can bepaid 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 ofthe 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 inBoard business together with actual andnecessary expenses.” Article 4442d, V.T.C.S., makes no distinction between ex-officio and regular board members with respect topayment ofexpenses. Webelieve exofficio 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 ofemolument, does not bar a state employee from holding a civil office of emolument. See Letter Advisory No. 30 (1973). Article XVI,section 40of the Texas Constitution, permits a nonelective state officer to hold other nonelective offices under the state, if the other office isrequired bystate 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). Ifthe legislature &sires to prohibit receipt ofper diem by these officials, it may enact astatute 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 inpart that “Amember of the board

... may not: (a)be anofficer, employee, orpaid consultant ofatrade association inthe nursing

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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 ofhis 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 aboard member’s independence of judgment. Aboard 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 hisindependence ofjudgment inthe performance ofhis official duties. Whether this provision bars aparticular activity, such asthat ofanadvisor, isafact question to be decided bythe 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 ofBoards 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. “Ingeneral use the words ‘trade associations’ convey the meaning ofan association ofemployers inthe same trade.” People exrel. Padula et al v. Hughes, 16N.E.2d 922, 924 (Ill. App. Ct. 1938). In the context ofthis statute it &es not appear that this national association of regulators isa 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 asan 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 ofTexas

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JOHN W.FAINTER, JR. First Assistant Attorney General TEDL.HARTLEY Executive Assistant Attorney General Prepared byPeter Nolan and Susan Garrison Assistant Attorneys General APPROVED: OPINION COMMITTEE C.Robert Heath, Chairman Susan Garrison Rick Gilpin Peter Nolan

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