DAN MORALES

.ATTORVEY GESERAL 

# Qmce oftip mtomep

&ate of Qexas August 12,1993 

## Qlkneral

HonorableTom Craddick Chair Ways and Means Committee Texas House ofRepresentatives P.O. Box 2910 Austin,Texas 78768-2910 Opiion No. DM-244 Re: whether there is a WI&t of interest where a person serves simultaneouslyas a wunty commissionerand a manager of a cotporation with whicha wmmunity center created by that county has entered into a contract (RQ-536) Dear RepresentativeCraddi& Your request for an opinionin8orms us that the GulfCoast Mental Health/Mental Retadation Community Center (“Gulf Coast Center”) is seeking to purchwe a new telephone system. The Gulf Coast Center is a wnnnunity center established by the counties of Galveston and Bnzoria pmsuant to former article 5547-203, V.T.C.S. (now sections 534.001 and 534.003of the Health and Safety Code). Allthe trustees of the Gulf Coast Center have been appointedby the wmmissioners courts of Galveston and Brazoria from among qualifiedvoters residingin those wunties pursuant to section 534.003 of the Health and Safety Code (“the code”). None of the trustees have been members of the commissionerscourts of those wunties, although section 534.083 expresslypermits such appointments. After receiving seven bids for the telephone system in a competitive-bidding process, the Gulf Coast Center’ sboard of trustees has awarded the wntract to the low bidder, J & J Telecommunications, Inc. of Galveston. J & J Telecommunications, Inc. is a corporation whose president happens to be a county wmmissioner of Galveston and whose. vice president is the son of that wnnnissioner. You ask us whether the wntract between the wnnnunity center and J&J TeJewnnnunications, Inc. is permissiblein spite of the wmmissionefs relationshipswith one of the counties that created the Gulf Coast Center and the corporation that is in wmmctual privity with the community center. We will consider this question in light of section 81.002 and chapter 171 of the Local Government Code and the public policy against did agency. For the purposes of the followingdiscussionit is important to note that the Gulf Coast Center, as a wmmunity center, is administeredby its board of trustees, Health 8c Safety Code 8 534.008, and that there is no statutory provisionfor a wunty’ s involvement in my fiuraion of a wnnnunity center other than in the appointment Of WuSteeS under

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sections 534.002 and 534.003 and in the wntriiution of prom to the center under section 534.019, “to administer the wmmunity cent& programs and services.” We therefore presume that the county wmmissioner did not participate in the decision to award the contract to J&J Tekcommunicatio~ Inc. Furthermore, the Gulf Coast Center, as a wmmunity center, is a unit of government aepamte 6om the wunties of Brazoria and Galveston:

(c) A wmmunity center is: (1) a state agency, govemmemal unit, and unit of local govemment, as de&red and apecitiedby Chapters 101 and 102. CivilPractice and RemediesCode; and (2) a local ttovammnt, as de&d by Section 3. The Interlocal Cooperation Act (Article 4413(32c). Vernon’ sTexas Civil Statutes). Ikaith & Safety Code 5 534.001(c); see Attorney General Opiion M-1266 (1972) at 5 (WlMliSdOnas court has no authority “to changeby resolution a wmmunity center into a couasy deputment”). ktion 81.002 of the Local Government Code requites a county wtnmissioner uponenteaiqofficetoawearthatheorshe

(1) awntractorclaimexpresdyauthorizedbylaw,or (2) a warrant issuedto the.

. . wnnnissioner as a fee of office. BecausethewntractbaweentheGulfCoartCarsaandJ&JTdeconmurnications,Inc. is not a “wntract with or claim against the war@ (emphasis added), we wnchtde that section 81.002 is inapplicable to this tmnmction. chapter171 oftheLocalGovamnatcodeilsogovansconBictsofintaestof county wmmissioners. Section 171.001 de6nes “local public 05cial” in part as “a member of the governingbody

. . . of any . . county.” The heart of chapter 171 is section 171.003, which prohibits, among other things, a local public official’ s “participation] in a vote or decision on a matter involving a business entity in which the 05cial has a substMtidinterest”incutdnciraunstanccs. We wnchtde that chapter 171 does not apply to the Gulf Coast Center’ s decision to award the contract to J&J Tekwntmunications because the county wnnnissiotter did not participate in that decision. Fiiy, we are of the opinion that the doctrine of dual agency does not apply to thewmmisaionerasamemberofawuntygoverningbodyandamanagerofa corporation with which a w mmunity center created by that governing body has entered into a wntract. The doctrine was stated as follows in Swft v. Kelso, 130 S.W. 610.611

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(Tex. Civ. App.-1910, no writ): “In all cases the principalis entitledto the best effort and unbiased judgment of his agent, and the law, for reasons founded in public policy, forbids the agent’ sassumptionof a relationwhich affords temptations antagonisticto [t]his duty.” We findhere no antagonism betweenthe wunty wmmissionet’ sduty to the wunty and his managementof a corporationthat is in contractualprivity with the GulfCoast Center. Because we have concluded that there is no conflict of interest arising from the wnnnissioner’ smanagementof the corporation in question, ufirtioti there is no conflict of interest arising from the less direct involvement of the wmmissioner with the corporationby virtue of his paternalrelationship to the corporation’ s

vice president. SUMMARY There is no wntlict of interest where a person serves simultaneously as a wunty wmmissioner and a manager of a corporation with which a wmmunity center created by that county has entered into a wntract.

DAN MORALES Attorney GeneralofTexas WILL PRYOR Fii AssistantAttomqGenerd MARYKELLER Deputy Attorney Generalfor Ligation RJZNEA HICKS State Solicitor MADELEINEB. JOHNSON Chair, OpinionCommittee Prepared by James B. Pinson Assistant Attorney Cienerd

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