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### T~~EATI-ORNEY 

### GENERAL,
OF??EXAS R-692

PRICE DANIEL AULITIN II. -TEXAS *Trcx?NEYGENeRAL August 15, 1947
Hon. 0. ii. Lloyd, Executive Secretary, Employees detirement System of Texas Post ~Office Box 791 Auatin, Texas Opinion No. V-345 de: Whether the Employees Hetirement System may employ an actuary as an independent contractor, whoat the sametime, is an actuary for another State Agency. Ubar Sir: Your letter to this Denartu:ent asked for an opinion as to wile,theri#Z. John ;j; ,iudd, J;. :~a:{be employed as an independent contractor to furnish actuarial services to the Texas. Emplo

YOUdisclose that K ees Retirement 3ystsm of r. liuddhis at the present time serving,as a consulting actuary for the Teacher itetirement System of Texas. iie is carried onthe pay roll of that Department as a part-time errployee.

ilitll reference to whether Mr. Hudd, if employed, would‘be an nemployeev or an “independent contractor,v the following information is obtained from correspondence furnished to us byyou: Kr. Huddmaintains an independent business as a consulting actuary at 107West 14th .Street in Austin. Heretains a staff of emplo?:ees and furnishes 0~11of his ownoffice machines anil equipment. Heis enpaged in actuarial ‘work as an independent .contractor for various insurance companies and pension systems. His work,with the Teacher detirement System.is that of furnishing actuarial services. ilewas offerea a oosition as Assistant Directorand Actuary for the.Teacher hetirement jystem at $4800.00 per year. In the alternative, he was offered $2500.00 per year to be their consulting actuary. He;‘lzc;q”,;d their latter offer and rejected the former. not occupy any desk space in any Teacher Retirement Systes office. Hedoes not have any stated officeHon. 0. H. Lloyd - Page 2 v-345

hours. meis free from tile control of the Teacher Retirement Systemwith respect to the details of the manner of his work.

There is considerable doubt as to whether or not Mr. Ruddis an vemployeen of the Teacher Retirement System, as distinguished from an “independent contractor”

. But, assumin that he is an wemployeewof the Teacher Retirement E ystem, the recited facts clearly indicate that Mr. Ruddwould be retained by the Rmployees Retirement System as an “independent contractoru rather than as an “employee”

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In Opinion No. V-303, promulgated by this office on July 15, 1947, a co y of which Is herewith enclosed, it was held that a !tate employee Is not prohibited by law from entering into and executing a contract, as an independent con$ractor, with another State agency where there was no incompatibility in such work, and where there wasnofailure to discharge his State duties. There is no incompatlblllty in furnishing actuarial services to both the Teacher Retirement System and the Employees Retirement System. There are no conflicts of interest; neither position is subordinate to ~the other; neither is sntaFonistic to the other; neither has anyTower to appoint or remove any employee of the other; neither audits the books of the other; and neither exercises any supervision over the-other.

Article XVI, Section 33, of the Texas Constitution provides:

*The accounting officers of this State shall neither drawnor paya warrant upon the treasury in favor of anyperson, for salary or c&t!:ensation as a;*ent, officer or appointce, ~110110ldsat the sari:::time any other ol’fice or vosit;on of horlor:ntrrs& or profit under this tate

. . . phasis added) However, an independent contractor occupies neither an office nor position under the State. Hois not anagent of the State. Heis free to control the details of the work, and maywork at such ilours a:; he maysee fit; he is free to employ or diucharye assistants without consulting anyone connected with the State:,

, Hon. G. H. Lloyd - Page 3 v-345

and hewould be responsible for his owntorts andthe torts of his employees. TheEmployees Retirement System is merely interested in the results of his work, to-wit, the actuarial tables and information to be furnished .byhim.

We, therefore, hold that Article XVI, Section 33, of the Constitution is not aprlicahle in this situation, and that you mayengage Fir. Kuddas a consulting actuary as an independent contractor. Byaccepting such contractj he,.wculd not jeopardize k-is 'part,;tinte position with tire ,l'eacher itetireuient &StStii, andthe accounting officers of.this State would be justified in issuing warrants in his behalf for services rendered.to both departments. Srn&ARY

TheEmployees. lietirement bystem of Tews mayengage an actuary as an independent contractor'who,, at the sametime, is an actuary for: another: state Depart-: ment, there being no incompatibility in such work, and there being no neglect of any State duties. Yours very truly, ATTORNEY

GENERAL

OFTEXAS

e G&2%-u

Joe H, Greenhill Executive Assistant

APPROVED:

JG@-&- FIRSTASSISTANT JRG:erc