### THE ATTORXEY GENERAL OF TEXAS

July 13. 1987

Honorable SteveW. Simmons DistrictAttorney 303 City-CountyBuilding El Paso, Texas 79901 OpinionNo. JM-745

Re: Whether a childprotective services specialist for the Department of Human Services may be a fosterparent for that agency

Dear Mr. Simmons:

You &k whether a conflict of interest would exist if a child protective services specialist of the Texas Department of Human Serviceswere a fosterparent for the department.

Article 6252-9b, section 1,V.T.C.S.,provides:

It is the policy of the State of Texas that no state officer or state employee shall have any interest, financial or otherwise, direct or indirect,or engage in any business transactionor professional activity or incur any obligation of any nature which is in substantial conflict with the proper discharge of his duties in the public interest. To implement this policy and to strengthen the faith and confidenceof thepeople of Texas in their state government, there are provided standards of conduct and disclosure requirements to be observed by persons owing a responsibility to the people of Texas and the government of the State of Texas in the performance of their official duties. It is the intent of the legislature that this Act shall
serve not only as a guide for official conduct of these covered persons but also as a basis for discipline of those who refuse to abide by its terms.
Article 6252-9b, section 8(c)provides:

No state officer or state employee should accept other employment or compensation whichHonorable SteveW. Simmons - Page 2 (~~-745)

could reasonably be expected to impair his independenceof judgment in theperformanceof his officialduties.

The Department of Human Services is responsible for regulating foster familyhomes as well as other child-care facilities. Hum. Res. Code 6642.001 et seq. To fulfill that responsibility,the department has promulgated qualificationsand standards for foster parents. 40 T.A.C. 5583.231 through 83.248. See also Hum. Res. Code 541.021 (departmentmay pay the cost of foster care in some circumstances). Although you indicate that a child protective services specialist is assigned to every foster child, you do not describe the specific responsibilitiesof a childprotective services specialist. You make clear, however, that you are not asking whether a child protective services specialist may be assigned to his own foster child. See generally Hum. Res. Code P42.021 (department shall employ sufficix personnel to fulfill its responsibilityto protect children in childcare facilities).

In thebrief you submittedwith your request,you suggest several potential conflictsof interest. You state, for example:

Being a foster parent entails certain obligations and responsibilities, such as attending service plan reviews, court hearings, and .other foster parent-related activities. A child protective services specialist's job is a full-time job that many times requires the specialist to work more than the usual 40-hour week. Problems will arise in that, as a foster parent, the child protective services specialist would have to be taking time off from his employment to be at meetings and other activities required of foster parents, thereby leading to interruptionsof said employee's job time.

If the departmentdetermined that a potential fosterparentwould not be able to meet the needs of a foster child because of job responsibilities or for any other reason, that person would not be qualified tobe a fosterparent. See generally 40 T.A.C. 583.234. If the "conflicts"you describe,however,were conflicts of interest for purposes of article 6252-9b, then no state employee could be a foster parent or, for that matter, a parent. Article 6252-9b does not prohibit state employees from engaging in activities or hobbies that might occasionally require them to use their leave or to be unavailable for overtimework. Cf. LetterAdvisoryNo. 62 (1973) (the fact that an individualmight nothave sufficient time to devote to twopublicpositionsdoes not create legal incompatibility).

p. 3465Honorable SteveW. Simmons - Page 3 JM-745)

You also suggest that the interests a child protective services specialistwould have as a fosterparentmight affect the decisionshe would have to wake as a child protective services specialist. If a child protective services specialist's role as a foster parent impairedhis ability tomake decisions and judgments required for his job, thena conflictof interest forpurposes of article 6252-9bwould exist. The determination of whether such a conflict does exist is a question of fact and should be determined by the department. See Attorney General Opinions H-1223 (1978) (determinationof whether: conflict of interest exists for purposes of article 6252-9b is a fact question that cannotbe resolved in the opinionprocess);H-688 (1975) (determinationof whether a conflict of interest exists for purposes of article 6252-9b must be made by body of which legislator in question is a member); see alsoAttorneyGeneralOpinionH-1317 (1978) (to the extent that rule of Department of Human Resources precludes employee's possession of a real estate license where no conflict of interest exists and where employee's performance is in no way impaired,rule Is invalid).

SUMMARY

The question of whether a Department of Human Services child protective services specialistmay serve as a foster parent is a question of fact that cannotbe resolved in the opinionprocess.

JIM MATTOX AttorneyGeneral of Texas

MARY KELLER ExecutiveAssistantAttorneyGeneral

JUDGE ZOLLIE STRAKLEY SpecialAssistantAttorneyGeneral

RICK GILPIN Chairman,Opinion Committee
Preparedby SarahWoelk AssistantAttorney General

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