DAN MORALES 

r\l-rORNEY GENERAL 

QMfice of tfy !&tornep &neral 

Qtate of ID;exas 

March 17,1993 

Mr. James L. Crouch 

ExecutiveDirector 

Public utility commission 

7800 Shoal Creek Boulevard 

Austin, Texas 78757 

Opinion No. DM-209 

Re: whether the hner employee of the 

Public Utility Conumss~ ’ ‘on who goes to work 

for an afHiate of a qulated utility violates 

nection 6 of a&k 1446c. V.T.C.S. (RQ-118) 

Dear Mr. Crou& 

You ask seeral questions about the post-employment restrictions applicable to a 

Public Utility Commission (PVC) employee who resigned to work for an a5liate of a 

PUC-regulated telephone company. You state that one of his last PUC assignments was 

asprojectmanagerfbra management audit on the regulated company. The audit was 

completed in Februaq 1991, and the employee resigned from the PUC in May 1991, 

beginning employment for the affdiate soon after. You state that the employee and the 

president of the regulated company, who was a&o president of the a5liate. apparently 

began employment negotiations while the audit of the telephone company was in progress. 

Article 1446c, V.T.C.S., the Public Utility Regulatory Act (Pm), restricts 

certain trwsacdons between PUC employees and a5liates of public utilities. In general, 

an”~te”orM*Iffiliatedintaest”ofaplblicutilityieapaaonorentitythatcM 

subswially control the policies and actions of the pubiic utility, that is subject to being 

controlledinthiswaybythepublicutility,orthatisurdercommon Oxltrolofthesame 

entity as the public utility. Section 3(i) of article 1446c de&s these terms as follows: 

“A6iliatedinterest”or”~“means: 

(1) any person or corporation owning or bold& dimctly or 

indktly,fivepercentormoreofthevotingseauitiesofapubtic 

utility;’ 

(2)anypersonorcorPorationinanychainofsucceaGve 

ownership of five percent or more of the voting securities of a public 

utility. 

p. 1098 
Mr. James L. Crouch - Page 2 (DM-209) 

(3) 8ny wrpomtion 6ve pacent or more of the voting ssurities 

of which is owned or controlled, dir&y or indkctly, by a public 

utility; 

(4) 8ny wrporation five percent or more of the voting securhies 

ofwhichisownedorw~~~direatyorindirectly,byanypenon 

or corporation that owns or wntroh dkectly or indkdy, five 

pacmtormoreofthevotingrearritiesofMypublicutility...; 

(5) anypemonwhoisanofficerordirectorofapublicutilityor 

ofanywrpomtioninanychainof- ownership of sve 

percent or more of vodng aeauitk of a public utility; 

(6) anypersonorwrpomtionthatthewmmission,afkrnotice 

and heaing, determines act&y exercises any substantial influence or 

control ova the policies and actions of a public utility, or over which 

rpublicutilityexerciaessuchwntrol.. .; 

(7) any person or wyratiti the wmmission a&r notice 

andhearingdetumines exacihgsuchsubstMti8l 

infium over the policies and action of the public utility . . . . 

Section 6 ofPURA prohibii various mmsactions between employees and fbrmer 

~l~ofthePUContheonehand~dpublicutilitiesMdtheiratbliat~ontheother. 

This section provides in part: 

6-Q No ccmmhiona or employee of the wmmission may 

dirwtlyorifdindysolicitorrequeatfiomorauggestorrewmrnwd 

to. my public utility, or to any agaq lqWen&q attolney, 

anploye+ officer, owner, director, or partner thereoc the 

appointmenttoanypositionortheemploymentin8nycapachyof 

anypasonbysuchpublicu5ityora5lkedintaest. 

(e) No public utility or dEliated intatst....nor any agent, 

ItpmaWq attorney, employcq officer, owner, director, or 

paRnerofarrypublicutilityora5liatedintere&...maygivqor 

offatogive,any...anployment...wfiatsoevato~manberor 

employee of the wmmission . . . . 

. . . 

(i) No. . . employee aha& within one year afta his employment 

with the wmmision has ceased, be employed by a public utility 

which w8s in the scope of the wmmission& or employee?3 05cial 

responsiiity while the wmmissiona or employee wns assoc&d 

with the wmmission. 

p. 1099 
Mr. JamesL. Crouch - Page 3 (DM-209) 

(j)Duringthetimea wmmissiona or en@oyee of the 

wmmissionisassocb&withthewmmissionorat~time*, 

the wmmissiona or employee may not mpmseat a paaoq 

wrporatio~~ or other business entity before the wmmission or a 

courtinamattainwhichthewmmissioneroranployeewas 

pasondyinvo~whue asao&edwiththewmmissionora 

mattathuwaswithinthe cxmlmhids or employee!? official 

responsiii while the wmmissioneroremployeewasllso&ed 

with the wmmision. 

V.T.C.S. art. 1446c. 5 6. 

You 6rst ask whetha section 6(i) was violated under the facts you have provided. 

Although we calmot resolve fact questions in an attorney gulaal opinios we can answer 

a legal question based on facts provided to us. Attorney General Opiion JM-495 (1986). 

Attorney Genersl Opiion JM-280 (1984) concluded that section 6(i) of article 1446c 

applied to the employment of a former member or employee of the Public Utility 

Commission by a public utility, but not to that person’s employment by en e5liated 

inkrestofrpublicutility. Acwrdingly,amumingthea5iiateinthiscaaemeetsthe 

definition set out in section 3(i) of PLRA, the former employee did not violate section 6(i) 

by awep6ng employment with that entity. 

YounartuL~itwu”l~undaKaion6(d)urd(e)fortheemployee 

andthewmpMyo5catonegotiateauchM uranganentwhiletheo5cerwespresident 

ofboththew~undaauditMdthe~edw~~dtheemployeewrsthe 

PUC stafF memba in charge of the audit?” 

Section 6(d) provides that no PUlM employee may “solicit or request from or 

suggest or recommend to” any 05cer of a public utility, “the employment in eny capacity 

of~pcrsanbysuchpublicutilityora5liatediaterest.” (Emphesisedded.) Inour 

opinion, the proh.i.ion in section 6(d) sgainst soliciting anployment for any person 

would bar a PURA employee fkom making such solicitations, requests, suggestions, or 

r-mmemMonsonbehalfofhisownallployment. IfthePURAanployeeaskedthe 

o5~foremploymmtwithtbe~eormademyothaoftheproMibed 

wmmmications, he violated section 6(d). 

Section 6(e) provides that no “05ca.. .ofanypublicutilityor[any]effWed 

intaest.. .may givq or offa to give. [My] employment...- to 

any...emp4oyeeofthewmmission.” Iftheo5caoftheregu&dutilitymadefmoffa 

of employment to the PUC employee while the employee worked for the PUC, the 05cer 

p. 1100 
Mr. JamesL.Croucb - Page 4 (DM-209) 

violated section 6(e).3 Whetha the PURA employee or the officcx snsllgsd in wnduct 

proscrii by s§ion (6)(d) or 6(e) of article 1446~ is a question of fact that cumot be 

fdhSSdiUMattorneygWMllOpiUiOll. 

You~Mkwhdbamyothallpplicablekanwaeviokteduadathe~ 

stated. YoudonotapeciQ~statutetiyouwishwtorddrrss,butwealggestttlat 

you wnsider whether section 8 of article 6252~9b, V.T.C.S., as well as se&on 39.01 of 

the Penal Cd might apply to the case you have de&x&d. Won 8 of article 6252%. 

V.T.C.S.. is designed to prevent a state 05cer or employee 6vm using his 05chl position 

to seek personal gain. It prohibits 05ccrs and employees hm having various private 

ewnomic illtams that might influence them in their exacise of public authohy.’ see 

Attorney General Opinion Jh4-587 (1986) (section 8 of article 6252-9b, V.T.C.S. provides 

no tanctions for violations of its provisions). 

p. 1101 
Mr. JamesL. Crouch - Page 5 (DM-209) 

Your mmabdng three questions are as fbllows: 

(4)Ifthescfkctshadoc~~edatIerJanwyl,l992,the 

effective date of Senate Bii 1, -;=I Legidatun, R@ar 

sessiol& 1991. would your - * 

(5)Towhatextent,ifany,wiUtheethicslawestabliahedio 

PURA wnhue to apply to PUC wmmissionu5 and 8taff afta the 

dfective date of Senate Bill l? 

(6) Conve&y~towhatextent,ifany,willthenewethicskW 

&Ii&d in Senate Bill 1 apply to PUC commisrionas and staff 

8fkitSCfkUiVCdlUC? 

senatCBiulofthe72dLegiskture~~~provisionsregulatingthedhicsof 

public savants.) Some of its provisions address conduct also wveted by section 6 of 

article 1446c, V.T.C.S. Article 6252-9b, V.T.C.S.. adopted in 1973 to establish standards 

of wmhlct for state 05cers and employces,~ applies to 05cers and employees of the 

PUC. Srr V.T.C.S. art. 6252-9b. 50 2(l), (S)(A)(i), o(A). (S)(A) (dcfming “state 

o6ica” and “state employee”). Senate Bill 1 adopted several amendments to article 

6252-9b, V.T.C.S., but most of these do not overlap with section 6 of article 1446c, 

V.T.C.S. SIX V.T.C.S. art. 6252-9b. §7B (probibithg assockion of employees of 

regulatory agency from sokiting anyhing of v&e hm regulated entities). Section 74 

thepaendmentmostrelevanttoyouriaquiry,providesasMknvs: 

(a) A memba of the goveming body or executive head of a 

regulatoryagencymaynotmak~withtheintenttoin6ualc4My 

wmmunication to or appearance before an 05cer or employee of the 

8gencyinwhichthepason~beforethe~ud~of 

thedatethepersonccasestobeamemberofthegovaningbodyor 

cJtecukllaldoftheagency,onbehalfofmlypuaoninwmIeuion 

withanynwlaonwhichtheperaon~o5cialaction. 

(b) Aformerstateo5caoraqhyeeofareguhtoryagcq 

whoceasesserviceoremploymentwiththeagencyonorah 

January 1, 1992, may not repnsent any pason or receive 

compensation for pavices rendered on behalf of any pcmon 

~aparticularmatterinwhichthefonnao5.caoranployee 

participated during the period of state service or employment, &her 

t&oughpasonrlinvo~entorbccausethecaseorprocesdingwrs 

a matta within the 05&s or employee’s 05cial respomiibii. This 

‘Acls 1991, M Leg. dl. 304. at 1290. 

‘kas 1973.63d Lc& ch 421.a11086 

p. 1102 
Mr. Jemes L. Crouch - Page 6 (DM-209) 

subsection does not apply to a rule-mahing procad@ thet was 

concluded before the 05&s or employee’s service or employment 

aared. 

(c) Subsection (b) of this section npplies only to: 

(1) asteteofficaorrregulatoryrgency,or 

(2) a state employee of a regulatory egency who is wmpensated . . . [detsils of wmpensation set out]. 

(d) rjorher Iaw re.rfriUs rhr rzpresarrariar of aperson befav a 

prtiadar stale agent @ a fonnrr state ofleer or emplqwer, lhe 

dher &nvpr6wa over this section. 

V.T.C.S. at. 62524%. 5 7A (emphesis added). 

Swtion 6tj) of the PuRq quoted above. prohiits a forma state 05ca or 

anployet f+om rrpr*renting personsbeforethePucunda-similatothose 

set out in section 7A Section 6(j) applies during the time the officer or employee is 

ILWC&~ with the wmmission “or at sny time a&r.” V.T.C.S. at. 1446c, 6(j). It 

prohibits the wmmissiona or employee from represemmg nny “perso& wrporatig or 

otba busin- entity hefore the wmmission or a wurt in a mstta in which the 

wmmissiona or employee was pasonslly involved whiJe amociated with the wmmission 

oramnttathntwesvdthinthewmmissi on&s or employee!? 05cinl reqxmsibiity” while 

raoaaed with the wmmission. Id. As expressly provided in section 7A(d) of article 

62524b, section 6(j) of the PUM prevahs ova section 7A@). 

Accordiagly,~&nnotbdieveouruLIwawouldbediffantifthetrpasactions 

youdescribehndouauredemirelyefkatheefktivedateofSennteBill1. Section7Aof 

article 62524b. V.T.C.S.. does not npply to the PUC. You have not identilied eny otha 

provisionsofSensteBilllthatappeartownflictwithprovisionsofsection6ofthe 

PUPA Amuming the ebsence of wntlicting provisions, the wmmissioners and employees 

ofthePUCeresubjecttotheprovisionsofSenateBii1tothesemedegreensaestete 

agency 05cers and employees in geneml. 

SUMMARY 

Section 6(i) of article 1446c. V.T.C.S., pawides thst a fbrmer 

employee of the Public Utility Commission (PVC) may not be 

employed within one year afta leaving the commission by II public 

utilitythatwasinthcscopeofhiso5~responsibilitywhilehe 

worked for the wmmission. This prohibition does not bar a former 

employee from working for the a5liate of such public utility within a 

year afla his depature &om the wmmission. 

p. 1103 
Mr. JamesL. Crouch - Page 7 (DM-209) 

Section 6(d) of article 1446c, V.T.C.S.. pro&bits an employee 

of the Public Utility Commission (PVC) fhm asking an 05cer of a 

regulated utility for employment with that utility or en a5liated 

intaest of the utility. Section 6(e) prohibits an 05cer of a public 

utility or a5liated interest from offering employment to any 

employee ofthe wmmission. whether any person has violated either 

of these provisions is a fact question. 

Senate Bii 1 of the 72d Legislature adopted post-employment 

restrictions on the appearance before a regulatory agency by former 

state officers sod employees of that agency. These provisions, 

cod&d as section 7A of article 6252-9b, V.T.C.S.. do not apply to 

forma state 05cers or employees iftheir represenWion of a person 

before a state agency is restricted by other law. Smce section 6(j) of 

article 1446c. V.T.C.S., places post-employment restrictions on 

appearances b&e the PUC by its forma wmmissioners and 

employees, section 7A of article 6252~9b, V.T.C.S., does not apply 

to these individuals. 

DAN MORALES 

Attorney Oenaal ofTexas 

WILL PRYOR 

First Ass&ant Attorney General 

MARYKELLER 

Deputy Attorney Oenaal for Litigation 

RENBAHIcKs 

State Solicitor 

MAD- B. JOHNSON 

Chair, Opiion Committee 

Prepamd by Susan L. Garrison 

At3shamAttorneyoulaal 

p. 1104