Ms. Jo King McCrorey OpinionNo. JM-719 ExecutiveDirector StateBoard of BarberExaminers Re: Whethermembers and employees 1300E. AndersonLane of the State Board of Barber Bldg. C, Suite 275 Examiners may engage in certain Austin,Texas 78752 activities without creating a conflictof interest

DearMs. McCrorey:

On behalf of the StateBoard of Barber Examiners,you ask several questionsabout potential conflicts of interest. Your first question iswhether itwould be a conflict of interest for theboard to examine
one of theboardmembers for licensure.

Article 6252-9b. V.T.C.S., sets standards of conduct for state officers and employees. Section 1, of article 6252-9b.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 anybusiness 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 strennthen the faith and confidence of the oeoole of Texas in their state government, there ire 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 disciplineof thosewho refuse to abideby its terms. (Emphasisadded).

See also V.T.C.S. art. 6252-9b, 98 (specific standards of conduct); art. 8407a, 529B(b) (restrictionson members of the Board of Barber Examiners). Whether a particularactivityviolates article 6252-9b is usually a question of fact, which cannot be resolved in the opinion

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process. SeeAttorney General Opinion H-1288 (1978). In this case, however,weconclude that as a matter of law itwould conflictwith a board member‘s discharge of his duties as a member of the Board of Barber Examiners ifhe took an examinationadministeredby theboard.

The Texas Barber Law, article 8407a, V.T.C.S., provides for a six-memberBoard of Barber Examiners:

The State Board of Barber Examiners is hereby created and shall consist of six members.appointed by the governor with the advice and consent of the senate. The board shall be composed of the following: two members shall be Class A barbers actually and actively engaged in the practice of barbering for at least five years prior to being appointedandwhile servingasmembers of theboard and who are not holders of a barber shop permit issued by the board; one member shall be a barber shop owner holding a permit issued by the board andwho is actively and actually engaged in the practice of barbering for at least fiveyearsprior tobeing appointedandwhile servingas a member of the board; one member shall be a person holding
a permit from the board to conduct or operate a barber school or college; and twomembers shallbe representatives of the general public who are not regulatedunder thisAct andwho do not have, other than as consumers, any financial interests in barbering. The terms of office shall be for six years with terms for two of the six board members expiring at the same time every two years. All members appointedby the governor to fillvacancies in the board caused by death, resignation, or removal shall serve during the unexpired term of such member's predecessor. Before entering upon the duties of office, each member of the board shall take the constitutional oath of office and file it with the secretary of state. Members of the board may be removed from office for cause in the manner provided by the statutes of this state for public officials who are not subject to impeachment. In case of death, resignation, or removal, thevacancy of theunexpired term shallbe 1

1. Your question raises another issue. Two board members must be personsnot regulatedby theboard. If one of those membersbecame licensed as a barber, the board would no longer be duly constituted. ? See generallyAttorneyGeneralOpinionJM-578 (1986).

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filledby the governor in the samemanner as other appointments. (Emphasisadded).

V.T.C.S. art. 8407a. 626(a).

The preparationand administrationof licensingand certification examinations is one of the main duties of the State Board of Barber Examiners. The board administers severaldifferent types of examinations. It administers examinations to persons who wish to become licensed as Class A registered barbers, V.T.C.S. art. 8407a. 57; to personswho wish tobecome certifiedasbarber teachers,V.T.C.S. art. 8407a, 69(f); and to persons who wish to obtain certain speciality licenses, such as manicurist licenses or wig specialist licenses, V.T.C.S. art. 8407a. 5915 through 17.

The purpose of the board's examinations is to determinewhether the rxaminee has the knowledge and skill necessary to the relevant license or certification. See art. 8407a. $97, 9(b), 11(a), 14(b), 15(d), 16(d), 17(d). The board could not fairly test the competence of an examineewho knew in advance the contents of the examination. Therefore, if a boardmemberwere to take an examination,he would not be able to participate in the preparation of the examination. Cf. V.T.C.S. art. 6252-9b. 16(a). Furthermore, if the board member had participated in the preparation of previous examinations, the board would not be able to re-use questions from these examinations. See - generallyOpen RecordsDecisionNos. 353 (1982); 118 (1976).

Because taking an examination administered by the board would preclude a board member from participating in one of the board's most important tasks and could work a hardship on the entire board, it would be in substantialconflictwith the board member's discharge of his public duties. We conclude, therefore, that a board member would violate the policy set forth in article 6252-9bby taking a licensing
or certification examination given by the board. Furthermore. an appointed state officer must take an oath promising to faithfully execute the duties of his office. Tex. Const.art. XVI, 61. Taking a board examinationwould place a boardmember in a position inwhich he would not be able to fulfill that oath. See also V.T.C.S. art. 5967 (state officersmay be removed for good cause). Therefore, a member of the State Board of Barber Examiners may not take a licensing or certificationexaminationgivenby theboard.

You also ask whether a barber inspector, a board employee, may engage in certain activities related to barbering. We must consider your questions about board employeesnot only in light of the policy and standards set out in article 6252-9b. but also in light of conflict-of-interest provisions in the barber licensing statute, article 8407a. Section 27a,whichwas added to article 8407a in 1967, provides:

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(a) No barber inspector or other employee of the State Board of Barber Examiners may sell barber supplies or engage in any other business which deals directly with barbers, barber shops,
or barber schoolsexcept thathe may engage in the practice of barbering.
(b) Violation of this section is a misdemeanor, and upon conviction is punishable by a fine of notmore than $5.000,or by confinementin the county jail for not more than two years, or both.
Section 29B.which was added in 1979,provides inpart:

Sec. 29B. (a) An employee of the State Board of Barber Examiners whose duties include the administrationof theboard's functionsunder this Act may not:
(1) have, other than as a consumer, a financial interest inbarbering;
(2) be an officer, employee, or paid consultant of a trade association in the barbering industry;or
(3) be related within the second degree by affinity or within the second degree by consanguinity to a person who is an officer, employee, or paid consultant of a trade associationin thebarbering industry.

. . . 4 (c) An employee who violates this section is subject to dismissal.

. . . Before we can address your specific questions, we must address whether section 27a has been impliedly repealed. It has been suggested that section 29B impliedly repealed section 27a because section 29B(a). the later enactment,is a comprehensiveprohibitionon conflictsof interestand ismore restrictivethan section 27a. Implied repeals are not favored. Standardv. Sadler, 383 S.W.2d 391 (Tex. 1964). If, by any reasonable construction,two acts can be construed so that both can stand, one will not be held to repeal the other. Cunningham v. Henry, 231 S.W.2d 1013 (Tex. Civ. App. - Texarkana 1950, writ ref'd n.r.e.). We think that the statutes in question can be harmonized to some extent, but we conclude that section 27a has been impliedly repealed to the extent that it

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affirmatively allows barber inspectors to.engage in the practice of barbering.
Section 29B applies to any board employee whose duties include the administrationof the board's functions and provides that such an employeemay not have any financial interest in barbering other than
as a consumer. An employeewho violates section 29B is subject to dismissal. Section 27a applies to all board employees and provides that an employeemay not "sellbarber supplies or engage in any other business which deals.directly with barber shops, or barber schools except that he may engage in the practice of barbering." An employee who violates section 27a is subject to criminal penalties. We construe those statutestogethertomean that an employeewho violates the stricter standard of section 29B is subject to dismissal but not criminal prosecution. An employee who violates both sections would be subject to criminal prosecution under section 27a as well as dismissal under section 29B(c). Section 27a affirmatively states, however, that a barber inspector "may engage in the practice of barbering." That provision conflicts with section 29B(a)(l), which prevents a barber inspector from having a financial interest in barbering other than as a consumer. Because section 29B is a later enactment,we think that it repeals the clause in section 27a that provides that a barber inspector may engage in the practice of barbering. SeeWright v. Broeter, 196 S.W.2d 82. 85 (Tex. 1946).

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We now turn toyour specificquestions. You askwhether a barber inspectormay take a course at a barber college during his off-duty hours. You also ask whether an inspector may take a .courseat a college located inhis inspectionterritoryor at a collegeownedby a boardmember. The prohibitions set out in article 8407a. section 27a,
are not applicable to your question. Furthermore, although barber
coursesmay ultimately lead to employmentor other financialrewards, enrollment in a barber course is only an indirect and fairly remote financial interest in barbering. We conclude that such an indirect interestisnot within the scope of theprohibition set out in section 29B. Cf. V.T.C.S. art. 6252-9b, 91 (prohibiting financial interest, direct> indirect,that are in substantial conflict, with state employment). The remaining issue, then, is whether a barber inspector's enrollment in a barber college would be in substantial conflict with the discharge of his duties as a barber inspector in violation of article 6252-9b.
Article 6252-9b provides that a state employee shall have no interest, financial or otherwise, that would be in substantial conflict with the discharge of his duties. Id. §l. We cannot say that a barber inspector's enrollment in abarber college would necessarily be in substantial conflict with his duties as a barber inspector. In this case, then, as in most cases, the determination ofwhether a substantial conflict exists is a question of fact. Therefore, theboardmust examine the facts of the case in question to determinewhether a substantialconflict exists. We do note,however,

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that an inspector's enrollment in a barber college that he is responsible for inspecting is more likely to create a substantial conflict of interest than enrollment in some other barber college. See generallyV.T.C.S. art. 6252-9b.

You next ask whether the board may examine for licensure one of its own employees -- presumably the barber inspector in question. Article 8407a. section 27a. is not applicable to your question. Nor do we think section 29B is applicable to your question since taking a licensing.examinationisnot a direct financial interest inbarbering. Again, then, the issue is whether the conduct in question violates article 6252-9b. You do not suggest how taking a board examination might be in substantial conflict with a board employee's duties. Therefore,we cannot even speculateonwhether a conflict exists. For employeeswho have a role in the preparation or administrationof the examination, a conflictwould exist if those employeeshad access to examinationquestionsbefore the examination. We cannot say,however, that there is necessarily a conflict between being a board employee and taking aboard examination.

Your final question iswhether a barber inspectormay be employed
as a part-time teacher at a barber college. Article 8407a, section 29B,provides that a board employeewhose duties include the administration of theboard's functionsmay not have a financial interest in ? barbering other than as a consumer. Inspecting barber schools is
one of the board's functions. V.T.C.S. art. 8407a. 428(a). Because a barber inspector's duties include administration of that board function,abarber inspector is subject to che.prohibitionsset out in section 29B. Teaching barbering leads directly to financial gain because a teacher in a barber college receives a salary for teaching barbering. We conclude, therefore, that a barber teacher has a "financial interest in barbering" for purposes of article 8407a. section 29B. Consequently,a barber inspectormay not be employedas a part-time teacher in a barber college.

SUMMARY

A member of the StateBoard of Barber Examiners may not take a licensing or certification examination offeredby the board. Board employees subject to article 8407a. section 29B, may not work as teachersatbarber colleges.

JIM MATTOX AttorneyGeneral of Texas

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JACK HIGHTOWER FirstAssistantAttorneyGeneral

MARY KELLER ExecutiveAssistantAttorneyGeneral

JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorneyGeneral

RICK GILPIN Chairman,OpinionCommittee
Preparedby SarahWoelk AssistantAttorneyGeneral

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