16 TAC §1.10
The Railroad Commission of Texas proposes new §1.10,
concerning commissioner conduct. The new section is intended to promote public
confidence in the integrity and impartiality of the commission and is to be
construed and applied to that end. A commissioner should participate in establishing,
maintaining, and enforcing high standards of conduct, and should personally
observe those standards of conduct so that the integrity and independence
of the commission is preserved. A commissioner shall avoid impropriety and
the appearance of impropriety in all activities; be knowledgeable of, and
comply with, the law; and neither allow any relationship to influence commission
business, quasi-judicial conduct or judgment nor lend the prestige of public
office to advance the private interests of the commissioner or others. Further,
a commissioner shall not convey, or permit others to convey, the impression
that any person is in a special position to influence the commissioner.
Subsection (a) of the proposed rule sets forth the standards applicable
to commissioners in contested cases. The rule would require that a commissioner,
when considering contested case issues, not allow any relationship, personal
or pecuniary, to influence decisions or policies. In addition, a commissioner
must not convey, or permit others to convey, the impression that any person
is in a special position to influence commission decisions.
Under the proposed rule, a commissioner will recuse himself or herself
from a contested case issue any time his or her impartiality might reasonably
be questioned, including but not limited to, any time he or she, or anyone
within the third degree of kinship by affinity or consanguinity with the commissioner
is a party to the proceeding; is acting as counsel to a party; or has a financial
or any other interest in the matter in controversy that could be substantially
affected by the outcome of the proceeding. Should the commissioner choose
not to recuse himself or herself, the commissioner will place in the record,
and in the
Texas Register
, a written explanation
of any potential conflict and a reasoned justification for not complying with
the recusal standards. A commissioner who believes another commissioner has
violated this section is required to raise the issue in a posted meeting at
the first opportunity.
Subsection (b) of the proposed rule provides interpretation and guidance
in applying the provisions of subsection (a). Disqualification (or a written
explanation of the reason a commissioner did not disqualify himself or herself)
would be required in all proceedings in which the commissioner served as a
lawyer in the matter in controversy, or a lawyer with whom the commissioner
previously practiced law served during such association as a lawyer concerning
the matter; or the commissioner knows that, individually or as a fiduciary,
he or she has an interest in the subject matter in controversy; or any of
the parties is related to the commissioner by affinity or consanguinity within
the third degree of kinship.
The guidance further provides that a commissioner is required to recuse
himself or herself in any proceeding in which the commissioner's impartiality
might reasonably be questioned; or the commissioner has a personal bias or
prejudice concerning the subject matter or a party, or personal knowledge
of disputed evidentiary facts concerning the proceeding; or the commissioner
or a lawyer with whom the commissioner previously practiced law has been a
material witness concerning it; or the commissioner participated as counsel,
adviser or material witness in the matter in controversy, or expressed an
opinion concerning the merits of it, while acting as an attorney in government
service; or the commissioner has knowledge that, individually or as a fiduciary,
the commissioner or the commissioner's spouse or minor child is a party to
the proceeding or has a substantial interest (financial, legal or equitable)
in the subject matter in controversy that could be substantially affected
by the outcome of the proceeding; or the commissioner or commissioner's spouse,
or a person within the third degree of relationship to either of them, or
the spouse of such a person, is a party to the proceeding, or is an officer,
director, or employee of a party; is known by the commissioner to have an
interest that could be substantially affected by the outcome of the proceeding;
or is, to the commissioner's knowledge, likely to be a material witness in
the proceeding.
A commissioner should be informed about his or her personal and fiduciary
financial interests, and should make a reasonable effort to inform himself
or herself about the personal financial interests of his or her spouse and
minor children. In these guidelines, the term "proceeding" includes all issues
related to contested cases, as defined in the Texas Administrative Procedure
Act; the degree of relationship is calculated according to the civil law system;
"fiduciary" includes such relationships as executor, administrator, trustee,
and guardian; "financial interest" means ownership of a legal or equitable
interest, however small, or a relationship as director, adviser, or other
active participant in the affairs of a party, except: (i) for ownership in
a mutual or common investment fund that holds securities unless the commissioner
participates in the management of the fund; (ii) an office in an educational,
religious, charitable, fraternal, or civic organization is not a "financial
interest" in securities held by the organization; (iii) the proprietary interest
of a policyholder in a mutual insurance company, of a depositor in a mutual
savings association, or a similar proprietary interest, is a "financial interest"
in the organization only if the outcome of the proceeding could substantially
affect the value of the interest; (iv) ownership of government securities
is a "financial interest" in the issuer only if the outcome of the proceeding
could substantially affect the value of the securities; (v) an interest as
a taxpayer or utility ratepayer, or any similar interest, is not a "financial
interest" unless the outcome of the proceeding could substantially affect
the liability of the commissioner or a person related to him or her within
the third degree more than the outcome would affect the other commissioners.
An individual's relatives within the third degree by consanguinity are
the individual's (1) parent or child (relatives in the first degree); (2)
brother, sister, grandparent, or grandchild (relatives in the second degree);
and (3) great-grandparent, great-grandchild, aunt who is a sister of a parent
of the individual, uncle who is a brother of a parent of the individual, nephew
who is a child of a brother or sister of the individual, or niece who is a
child of a brother or sister of the individual (relatives in the third degree).
Spouses are related to each other in the first degree by affinity. For other
relationships by affinity, the degree of relationship is the same as the degree
of the underlying relationship by consanguinity. For example, if two individuals
are related to each other in the second degree by consanguinity, the spouse
of one of the individuals is related to the other individual in the second
degree by affinity. An individual's relatives within the third degree by affinity
are anyone related by consanguinity to the individual's spouse, and the spouse
of anyone related to the individual by consanguinity, in one of the ways named
in examples (1), (2), and (3), above.
Mary Ross McDonald, Deputy General Counsel, Office of General Counsel,
has determined that for each of the first five years the proposed section
will be in effect, there will be no fiscal implications for state or local
governments. For each year of the first five years the new section is in effect,
the public benefit anticipated as a result of this rule will be the benefit
associated with increased public confidence in commission deliberations and
decisions. There will be no cost of compliance for small businesses and micro-businesses
as a result of the adoption of the new rule; the only individuals affected
by this rule are the three Railroad Commissioners.
Comments may be submitted to Mary Ross McDonald, Office of General Counsel,
Railroad Commission of Texas, P.O. Box 12967, Austin, Texas 78711-2967 or
via e-mail at polly.mcdonald@rrc.state.tx.us. Comments will be accepted for
30 days after publication in the
Texas Register
.
The Commission proposes the section under Texas Government Code, §2001.004,
which, among other things, requires the Commission to make available for public
inspection all written statements of policy or interpretations that are prepared,
adopted, or used by the agency in discharging its functions. The Commission
elects to make this policy statement through the proposal and adoption of
a procedural rule.
Texas Government Code, §2001.004, is affected by the proposed new
section.
Issued in Austin, Texas on February 6, 2001.
§1.10.Commissioner Conduct.
(a)
Participation in Contested Cases.
(1)
When considering contested case issues, a Railroad Commissioner
shall not allow any relationship, personal or pecuniary, to influence decisions
or policies, and shall not convey, or permit others to convey, the impression
that any person is in a special position to influence commission decisions.
(2)
A commissioner will recuse himself or herself from a contested
case issue any time his or her impartiality might reasonably be questioned,
including but not limited to, any time he or she, or anyone within the third
degree of kinship by affinity or consanguinity with the commissioner:
(A)
is a party to the proceeding;
(B)
is acting as counsel to a party; or
(C)
has a financial or other interest in the matter in controversy
that could be substantially affected by the outcome of the proceeding.
(3)
A commissioner otherwise subject to the provisions of paragraph
(2) of this subsection who elects not to recuse himself or herself will place
in the record, and in the
Texas Register
,
a written explanation of any potential conflict and a reasoned justification
for not complying with paragraph (2) of this subsection.
(4)
A commissioner who believes another commissioner has violated
this section shall raise the issue in a posted meeting at the first opportunity.
(b)
Interpretation guidance. The following commentary is to
assist in the application of this section.
(1)
Disqualification. A commissioner shall either disqualify
himself or herself, or place in the record a written explanation for not disqualifying
himself or herself, in all proceedings in which:
(A)
the commissioner served as a lawyer in the matter in controversy,
or a lawyer with whom the commissioner previously practiced law served during
such association as a lawyer concerning the matter; or
(B)
the commissioner knows that, individually or as a fiduciary,
he or she has an interest in the subject matter in controversy; or
(C)
any of the parties is related to the commissioner by affinity
or consanguinity within the third degree of kinship.
(2)
Recusal. A commissioner shall recuse himself or herself
in any proceeding in which:
(A)
the commissioner's impartiality might reasonably be questioned;
or
(B)
the commissioner has a personal bias or prejudice concerning
the subject matter or a party, or personal knowledge of disputed evidentiary
facts concerning the proceeding; or
(C)
the commissioner or a lawyer with whom the commissioner
previously practiced law has been a material witness concerning it; or
(D)
the commissioner participated as counsel, adviser or material
witness in the matter in controversy, or expressed an opinion concerning the
merits of it, while acting as an attorney in government service; or
(E)
the commissioner has knowledge that, individually or as
a fiduciary, the commissioner or the commissioner's spouse or minor child:
(i)
is a party to the proceeding, or
(ii)
has a substantial interest (financial, legal or equitable)
in the subject matter in controversy that could be substantially affected
by the outcome of the proceeding; or
(F)
the commissioner or commissioner's spouse, or a person
within the third degree of relationship to either of them, or the spouse of
such a person:
(i)
is a party to the proceeding, or is an officer, director,
or employee of a party;
(ii)
is known by the commissioner to have an interest that
could be substantially affected by the outcome of the proceeding; or
(iii)
is, to the commissioner's knowledge, likely to be a material
witness in the proceeding.
(3)
A commissioner should be informed about his or her personal
and fiduciary financial interests, and make a reasonable effort to inform
himself or herself about the personal financial interests of his spouse and
minor children.
(4)
In these guidelines:
(A)
"proceeding" includes all issues related to a contested
case as defined in the Texas Administrative Procedure Act;
(B)
the degree of relationship is calculated according to the
civil law system, as follows:
(i)
Two individuals are related to each other by consanguinity
if one is a descendant of the other or they share a common ancestor. An adopted
child is considered to be a child of the adoptive parent for this purpose.
(ii)
The degree of relationship by consanguinity between an
individual and the individual's descendant is determined by the number of
generations that separate them. A parent and child are related in the first
degree, a grandparent and grandchild in the second degree, a great-grandparent
and great-grandchild in the third degree and so on.
(iii)
If an individual and the individual's relative are related
by consanguinity, but neither is descended from the other, the degree of relationship
is determined by adding:
(I)
the number of generations between the individual and the
nearest common ancestor of the individual and the individual's relative; and
(II)
the number of generations between the relative and the
nearest common ancestor.
(iv)
An individual's relatives within the third degree by consanguinity
are the individual's:
(I)
parent or child (relatives in the first degree);
(II)
brother, sister, grandparent, or grandchild (relatives
in the second degree); and
(III)
great-grandparent, great-grandchild, aunt who is a sister
of a parent of the individual, uncle who is a brother of a parent of the individual,
nephew who is a child of a brother or sister of the individual, or niece who
is a child of a brother or sister of the individual (relatives in the third
degree).
(v)
Two individuals are related to each other by affinity if:
(I)
they are married to each other; or
(II)
the spouse of one of the individuals is related by consanguinity
to the other individual.
(vi)
The ending of a marriage by divorce or the death of a
spouse ends relationships by affinity created by that marriage unless a child
of that marriage is living, in which case the marriage is considered to continue
as long as a child of that marriage lives.
(vii)
A husband and wife are related to each other in the first
degree by affinity. For other relationships by affinity, the degree of relationship
is the same as the degree of the underlying relationship by consanguinity.
For example: if two individuals are related to each other in the second degree
by consanguinity, the spouse of one of the individuals is related to the other
individual in the second degree by affinity.
(viii)
An individual's relatives within the third degree by
affinity are:
(I)
anyone related by consanguinity to the individual's spouse
in one of the ways named in clause (iv) of this subparagraph; and
(II)
the spouse of anyone related to the individual by consanguinity
in one of the ways named in clause (iv) of this subparagraph.
(C)
"fiduciary" includes such relationships as executor, administrator,
trustee, and guardian;
(D)
"financial interest" means ownership of a legal or equitable
interest, however small, or a relationship as director, adviser, or other
active participant in the affairs of a party, except that:
(i)
ownership in a mutual or common investment fund that holds
securities is not a "financial interest" unless the commissioner participates
in the management of the fund;
(ii)
an office in an educational, religious, charitable, fraternal,
or civic organization is not a "financial interest" in securities held by
the organization;
(iii)
the proprietary interest of a policyholder in a mutual
insurance company, of a depositor in a mutual savings association, or a similar
proprietary interest, is a "financial interest" in the organization only if
the outcome of the proceeding could substantially affect the value of the
interest;
(iv)
ownership of government securities is a "financial interest"
in the issuer only if the outcome of the proceeding could substantially affect
the value of the securities;
(v)
an interest as a taxpayer or utility ratepayer, or any
similar interest, is not a "financial interest" unless the outcome of the
proceeding could substantially affect the liability of the commissioner or
a person related to him or her within the third degree more than it could
affect the other commissioners.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State, on February 6, 2001.
TRD-200100762
Mary Ross McDonald
Deputy General Counsel
Railroad Commission of Texas
Earliest possible date of adoption: March 25, 2001
For further information, please call: (512) 475-1295