JIM MAlTOX Attorney General

Supreme Court Bullding P. 0. BOX 12543 Austin. TX. 7971% 2549 5121475-2501 Telex 9101574.1357 Telecopier 512f475-0255

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An Equal Opportunity/ Afflrmatlvs Action Employer 

# The Attorne,y General of Texas
Se~ptember

11. 1986

us. Peggy Rosson OpinionNO.JM+Q Chairman Public Utility Commkision Re: Authority of the Executive of Texas Direc,tor.ofthe Public Utility 7800 Shoal Creek Blvd., Suite 400N Comnlission Austin,Texas 7875:'
Dear Ms. Rosson:
You ask severa:.

questionsabout the role of the executivehead of the Public Utility Commission [hereinafter "PCC"]. Specifically,you ask: 1. Wallit the intent of the legislature in

creating the position of executive director that the executive director be the executive head of the Public Utility Commission? 2. If so, what is the scope of the authority, responsib::l.ity

and duties of the executivehead of the Public Utility Commission? In particular, what authority do the commissioners have to delegate to the executive director authority for carrying out administrative functions necessary for the duty

to day operationof the commission? Section 8 of the Public Utilities RegulatoryAct (PUILQ, article 1446c,V.T.C.S.. containsprovisionsregarding employeesof the PUC:

Sec. 8. (a) The commission shall employ such officers, administrative law judges, hearing examiners, investigators, lawyers, engineers, economists, consultants, statisticians, accountants, administriltiveassistants, inspectors, clerical staff, ani other employees as it deems necessary to carry out the provisions of this Act. All employeesreceive such compensationas is fixedby the legis:.ature. (b) ns! commission shall employ the following: (1) grexecutive director;

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(2) 

### a director of hearings who has wide experience in 11t111ty regulation and rate determination; (3) a chief engineer who is a reg:;:;;;z engineer and ar. expert in public engineeringand ratematters; (4) a chief accountant who is a certified public accountaM experienced in public utility accounting; (5) a director,of researchwho.is experienced in the conduct of analysesof industry,economics, energy, fuel, and other related matters that the commissionmay want to undertake; (‘5) a director of consumer affairs and public information; (7) a director of utility evaluation; (8) a director of energy conservation;and (9) a general counsel. (c) The general counsel and his staff are responsible for the gathering of information relating to all natters within the authority of the emission. The duties of 1:h:e general counsel include: (1) accumulatj.on of evidence and other information from public utilities and from the accounting and technical and other staffs of the commissionand from other sources for thepurposes specifiedherein; (2) preparation and presentation of such evidence before i:hecommission or its appointed examiner inproce~!dings; (3) conduct of investigations of public utilities under 1:he jurisdiction of the commission; (4) preparation of proposed changes in the rules of the comm:tssion;

p. 2496Ms. Peggy Rosson - Page 3 (Jh-542)

P

P (5) preparation of recommendations that the commission undertake investigation of any matter within its author:lt:y; (6) preparation of recommendations and a report of such staff for inclusion in the annual report of the commission; (7) protectlou and representation of the public interest and coordination and direction of the preparation amd presentation of evidence from the comnission staff in all cases before the commission as necessary to effect the objectives and purposes stated in this Act and ensure protection of the public interest; and purposes stated in this Act and ensure protection of the public interest;and (8) such other activities as are reasonably necessary to enab1.e him to performhis duties. (d) The commission shall employ administrative law judges topreside at hearings of major importance before the cosmission. An administrativelaw judge must be a licensed attorney with not less than five years' general experience or three years' experience Ln utility regulatory law. The administrative la18judge shall perform his duties independentlyfrolrthe cornmission.The coomnission and parties who nosyappear before the commission may not communicate with an administrative law judge concerning any issue of fact or law in a contested case that has not been finally decided by the commission, except on notice and opportunity for all parties toparticipate. (e) The executive director or his designee shall develop

_

,%I11 intraagency career ladder program, one par: of which shall be the intraagencyposting of;111nonentry levelpositions for at least 10 daysTIeforeany public posting. The executivedirector-orhis designee shalldevelop a system of annual performance evaluationsbased on measurable job tasks. All merit pay for commission enployeee-must be based on the system establishedunderThis section. (f) The execulzJve directoror his/her designee shall prepare ar.dmaintain a written plan to assure implemenGi:ion of a program of equal employment oppor&nity whereby all personnel transactions are-made without regard to race,

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-, color, disability,-sex.religion,age, or national origin. The plans shall include: 

### (1) a comprehensive analysis of all the agency's work for-e by race, sex, ethnic origin, class of position, and salary or wage: (2) plans for recruitment, evaluation, selection, appointmentI training, promotion, and other personnelpolicies; (3) steps reamnably designed to overcome any identified unden~tilization of minorities and women in the agency'swork force;and (4) objectiver,and goals, timetables for the achievement of t,be objectives and goals, and assignments of responsibility for their achievement. The plans shal,lbe filed with the governor's office within 60 days of the effective date of this Act, cover sn annual period. and be updated at least annually. Progress reports shall be submitted to the rovernor'soffice within 30 days of November 1 and April 1 of each year and shall include the steps tthe agency has takenwithin the reporting period to COrnplY with these requirements. (EnLphasis added).
Your first question :tswhether the legislature intended the executive director provid~zd for in section 8(b)(l) to be the "executivehead" of the PubHc Utilities Commission. Since "executive head" has no precise meaning outside of a particular context, we assume you are asking whethar the position of executive head of the PUC was intended to be com!?srableto a position such as director of the Texas Department of Corrections. See V.T.C.S. art. 6166j (providesthat TDC shall deLlagateto the director authority to manage the affairs of theprison sys;tem). In otherwords,we assume thatyou are asking whether the legislature intended the executive director to be the chief administrativeemployeeof the PUC. Section 8(f) of PURA Iletsout specific duties of the executive director of the PUC. Those :specific duties do not make the executive director the chief administrative employee df the PUC. Rather, they require him to "prepare and maintain" plans for various personnel policies. If the legislaturehad intended to mandate that the executive director be the chief administrator of the PUC, it could have easily done so. Cf.V.T.C.!:. art. 6166j. Because the legislaturedid not do so,we mustconclude that PURA does not require that the executive directorbe the chief administrativeemployeeof the PUC.

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You also ask whether the commissioners may delegate to the executivedirector the task of carrying out the day-to-dayadministration of thePUC. Section 8(e) of PURA ,mts out certain specific duties that the executivedirectormust perjiorm.Also, the commissionersmay, if they choose. delegate to the executive director the ministerial and administrativetasks involvoil inmanaging the day-to-dayactivitiesof the PUC. Although acts invo:.ving officialdiscretionmust be performed by the body designatedby law, administrativeor ministerial acts may be delegated to others. The authority to hire new personnel or to purchase supplies, for example, may be delegated to the executive director or to any divisior chief listed in section 8 of art. 1446~. Attorney General Opinion NCIS.WW-66 (1957); M-663 (1970). See also Attorney General Opinion V-350 (1947) (discussion of distinction between discretionaryandm:.nisterial acts). Therefore,althoughPURA does not require that the ex,ecutive directorbe the chief administrative employee of the PUC, the commissionersmay delegate that role to the executive head, as lone;as they do not delegate responsibilities that involve the exercise cf discretion, or that the legislaturehas placed elsewhere. SUMMARY

Section 8 of thei

PURA does not require that the executive director of the Public Utility Commission be the chief administrative employee. The commissionerrrmay, however, delegate any administrative or ministerial tasks to the executive director tha: the legislaturehas not placed elsewhere.

JACKRIGETOWER FirstAssistantAttorneyGeneral
MARY KELLER ExecutiveAssistantAttorney General RICK GILPIN Chairman.Opinion Committee Preparedby SarahWoelk AssistantAttorney General VeryI trulyyoursj 1 

# /In+- 

# LJ JIM MATTOX Attorney General of Texas

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