# The Attorney General of Texas August 4, 1978 JOHNL.HILL AttorneyGeneral

Honorable Lee H.Smith, President Southwest Texas State University San Marcos, Texas 78666 Opinion No.H-1223 Re: Whether college president may participate in universitysponsored continuing education program for afee. Dear Dr.Smith: Youask whether the President ofSouthwest Texas State University may accept a fee for participating in auniversity-sponsored continuing education program. The continuing education programs are funded by the persons attending them through the payment of a registration fee. Occasionally, members of the university’s faculty, staff, and administration are invited to speak at such programs for afee above the salary provided by contract with the university. The Board of Regents, Texas State University System, has recently promulgated an order authorizing employees of Southwest Texas State to participate incontinuing education programs for afee, limiting the amount of time that might be devoted to such activities, and requiring the approval of the participant’s supervisor. University administrators must use vacation time or adjust their working hours for the periods in which they engage in these activities. You ask whether the President’s receipt of a fee for participation in certain seminars violates any ofthe following provisions:

1. The standards of conduct of State officers and employees contained in section 8of article 6252-9(b), V.T.C.S. 2. Article V, S 1.q. of the current General Appropriations Act. 3. Prohibitions against dual office holding found in article 16,section 40and article 6252-9a, V.T.C.S.

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Article 6252-9b declares the policy that no state officer shall have any interest which is in substantial conflict with the proper discharge of his duties in the public interest. Section 8ofarticle 6252-9b provides inpart:

(a) No state officer or state employee should accept or solicit any gift, favor, or service that might reasonably tend to influence him in the discharge of his official duties or that he knows or should know isbeing offered him with the intent to influence his official conduct.

. . . . (cl No state officer or state employee should, accept other employment or compensation which could reasonably be expected to impair his independence ofjudgment in the performance ofhis official duties. The President’s participation in continuing education seminars for compensation raises the possibility that these sections will be violated. However, we cannot determine asa matter oflaw whether ornot this employment would violate section 8of article 6252-9b. That is afact question, which requires close scrutiny of the circumstances ofthe employment. It is for the Regents to determine, in light of the duties of the university president and the policy underlying article 6252-9b. See Attorney General Opinions H-696, H-688(1975). - Article V,section 1.q.ofthe General Appropriations Actprovides inpart:

None of the funds appropriated to departments and agencies covered inArticles Ithrough IVofthis Act shall be expended for payment of salary to any person whose individual line-item exempt salary is being supplemented from other than appropriated funds until a report showing the amount and sources of salary being paid from other sources has been reported to the Secretary of State and Comptroller ofPublic Accounts. General Appropriations Act, Acts 19’77,65th Leg., ch. 872, at 3141. The President ofSouthwest Texas State receives an individual line item exempt salary and is thus subject to this provision. & at 3086. See also Educ. Code 5s51.002(a)(9), 51.006. However, we do not believe that money received for participation in a continuing education program constitutes a salary supplement. The Texas Supreme Court has noted that “asalary is afixed compensation for regular work.” Wichita County v. Robinson, 276 S.W.2d 509, 513(Tex. 1954). See also Kolcum v. Bs Education of Woodbridge School Dist., 335A.2d618,621(Del.uper. 19751(salary is

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compensation for official orprofessional services orregular work)., Webelieve that article V, section 1.q. of the appropriations act concerns the payment of extra compensation for performing the regular duties of the position. See Attorney General Opinion WW-376(1958). It does not apply to the receipt of compensation for services which constitute no part of employee’s duties. Weunderstand from your letter that the President of Southwest Texas State has no duty to participate in continuing education seminars and would not usually take part in them. He participates only at the request ofpersons organizing the seminar. Thus, any fees received for such participation willnot be subject to article V,section 1.q. Article 16,section 40of the Texas Constitution prohibits the holding ofmore than one civil office of emolument at the same time. Article 6252-9a, V.T.C.S., concerns circumstances under which nonelective state officers may hold other nonelective offices. See Attorney General Opinion H-5 (1973). Wedonot believe the President’s particision incontinuing education seminars would violate either of these provisions. Wehave said that auniversity instructor does not hold acivil office of emolument. here is intermittent. Letter Advisory No. 137(1977). The employment at issue See Letter Advisory No. 63 (1973). Even less than employment as auniversityinstructor can it be said to constitute a civil office of emolument. Thus, without deciding whether the President already holds a civil office of emolument, we can conclude that his work in continuing education programs would not violate prohibitions against dual office holding. Finally, we direct your attention to section 36.08 of the Penal Code, inorder that you may be alert to insure that none of its provisions regarding pecuniary benefits to public servants are violated. SUMMARY The President of Southwest Texas State University is not barred from participation incontinuing education programs for a fee by article V, section 1.q. of the General Appropriations Act, article 16,section 40 of the Constitution, or article 6252-9a, V.T.C.S. Whether such participation would violate article 6252-9b, V.T.C.S., is a fact question for the Regents to resolve.

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# eED:

/ DAVIDM.KENDALL, First Assistant 

# L&-&iL<~&man

Opinion Committee ’

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