Texas Ethics Commission

The Texas Ethics Commission
is authorized by Texas
Civil Statutes, Article 6252-9d.1,
sec.1.29, to issue advisory
opinions in regard to
the following statutes: Texas
Civil Statutes, Article 6252-9b;
the Government Code, Chapter
302; the Government Code;
Chapter 305; the Election
Code, Title 15; the Penal
Code; Chapter 36; and
the Penal Code, Chapter
39.

Requests for copies of the full text of opinions or questions
on particular submissions should be addressed to the Office of
the Texas Ethics Commission, P. O. Box 12070, Austin, Texas 78711-2070,
(512) 463-5800.



Opinions


EAO-1. Concerning
of a state agency that
is not listed as a
"major" state agency must
file a financial disclosure
statement under Texas Civil
Statutes, Article 6252-9b, if
the officer does not
receive a salary.


Summary of Opinion.
Article 6252-9b, as amended, requires "every state officer" to
file an annual financial disclosure statement. This includes
appointed officers who hold non-salaried positions. This current
requirement to file a statement based on the previous year's
financial activity is not retroactive or unconstitutional as
to those appointed officers who were appointed before the amendment's
effective date.


EAO-2. Concerning
whether a person registering
as a lobbyist may report
on his initial registration
form the total amount
of compensation that the
registratn expects to receive
in 1992 compensation (AOR-1).


Summary of Opinion.
A registrant filing an initial registration and renewal form
under section 305.005 of the Government Code must disclose Compensation
actually recieved at that time for the year, either by actual
amount or as a category amount. Anticipated Compensation is not
to be reported.


EAO-3. Concerning
whether certain activities trigger
lobby registration requirements
(AOR-2).


Summary of Opinion.
A person who communicates with a member of the executive or legislative
branch of state government is not required to register as a lobbyist
under the Government Code, Chapter 305 if the person makes no
expenditures other than expenditures for his own travel and lodging
and receives no compensation other than reimbursement for his
own travel and lodging.


EAO-4. Concerning
whether an association of
owners of recreational facilities
may provide free family
passes to legislators and
certain members of the
executive branch (AOR-3).


Summary of Opinion.
An association's transfer of a free pass for use of recreational
facilities would be a direct communication for purposes of the
Government Code, Chapter 305.

Such a transfer for the purpose of generating goodwill among
members of the legislative and executive branches and for the
purpose of giving legislators insight into industry problems
would be to influence administrative or executive action.

The transfer of such a pass would be reportable as "entertainment."
Thus, an association may provide such a pass only if the registrant
is present each time the pass is used.


EAO-5. Concerning
whether certain activities of
a lawyer in representing
a client before the Office
of the Comptroller of
Public Accounts and in
tax refund suits against
the state require the
lawyer to register as
a lobbyist (AOR-6).


Summary of Opinion.
A lawyer who has met the compensation or reimbursement threshold
and who represents a taxpayer in a hearing before the Office
of the Comptroller of Public Accounts for redetermination or
refund is not engaging in an activity or communication that would
require the lawyer to register as a lobbyist.

A lawyer who has met the compensation or reimbursement threshold
and who communicates with the legal representative of a state
agency concerning litigation to which the agency is a party is
not engaging in activity or communication that requires registration
as a lobbyist.

A lawyer who has met the compensation or reimbursement threshold
and who makes a request for information is not engaging in activity
or communication that would require the lawyer to register.

A lawyer who has met the compensation or reimbursement threshold
and who requests a written opinion from the agency, which cites
statutory and other law in support of a particular viewpoint,
is not thereby engaging in activity or communication that would
require the lawyer to register.


EAO-6. Concerning
determination to accept or
refuse a political contribution
(AOR-7).


Summary of Opinion.
The determination to refuse a political contribution and the
return of a political contribution are distinct for purposes
of the Election Code, Title 15. Once a determination to refuse
a contribution has been made, the contribution must be returned
within 30 days after the deadline for filing a report for the
reporting period during which the contribution is received.


EAO-7. Concerning
whether a person filing
a report under the Election
Code, Title 15 may substitute
a form for the form
prescribed by the Ethics
Commission (AOR-9).


Summary of Opinion.
A person filing a report under the Election Code, Title 15 may
not substitute a form in place of the prescribed form or a page
in place of a page of the form adopted by the commission unless
the commission has approved the use of the substitute form. For
an attachment to be approved, the attachment must be of the same
paper size as the prescribed form. The information must appear
on the attachment in substantially the same format as it would
have appeared on the prescribed form.


EAO-8. Concerning
interpretation of confidentiality
provision set out in
Texas Civil Statutes, Article
6252-9b, sec.1.21 (AOR-10).


Summary of Opinion.
A person who intends to file a sworn complaint with the Ethics
Commission may discuss with the press or the public the fact
the he intends to file a complaint and the contents of the proposed
complaint. A person who has filed a sworn complaint with the
commission may discuss with the press or the public the fact
that he has filed a complaint and the contents of the complaint.

The commission must give notice of a sworn complaint to the
respondent within 14 days after the commission receives the complaint,
and as part of that notice, the commission must identify the
complainant and the nature of the complaint.

The respondent to a sworn complaint with the commission may
discuss the fact that the complaint has been filed and the contents
of the complaint.

The Ethics Commission may release to the public the contents
of a sworn complaint, including the name and address of the complainant,
if that information is entered into the record of a formal hearing
or a judicial proceeding.


EAO-9. Concerning
whether nonprofit water supply
corporations are "political subdivisions"
for purposes of the Government
Code, Chapter 305 (AOR-11).


Summary of Opinion.
Nonprofit water supply corporations are not political subdivisions
for purpose of the Government Code, Chapter 305 and Ethics Commission
rules adopted under the chapter.


EAO-10. Concerning
whether certain activities of
a corporate political action
committee are proper (AOR-13).


Summary of Opinion.
No provision in the Texas Election Code prohibits a corporation
from being established just to form a political committee. There
are no restrictions in the Election Code on who may make political
contributions to a corporate political committee. A political
committee whose principal purpose is limited to supporting or
opposing an identified city measure may not file its campaign
treasurer appointment with the Ethics Commission. It is required
to file its campaign treasurer appointment with the city secretary.
The improper filing of a campaign treasurer appointment can be
the basis of a sworn complaint to the Ethics Commission.

The Texas Ethics Commission is authorized by Texas Civil Statutes,
Article 6252-9d.1, sec.1.29, to issue advisory opinions in
regard to the following statutes: (1) Texas Civil Statutes, Article
6252-9b; (2) the Government Code, Chapter 302; (3) the Government
Code, Chapter 305; (4) the Election Code, Title 15; (5) the Penal
Code, Chapter 36; (6) the Penal Code, Chapter 39.

Questions on particular submissions should be addressed to
the Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070,
(512) 463-5800.


Issued in Austin, Texas, on April 27, 1992.

TRD-9205889

Sarah Woelk

Director, Advisory Opinions

Texas Ethics Commission

Filed: April 29, 1992

For further information, please call: (512) 463-5800

   
   


Requests for Opinions


AOR-27. The Texas
Ethics Commission has been
asked to consider a number
of questions about the
application of the Government
Code, Chapter 305 to
various kinds of contact
between employees of an
engineering firm and representatives
of governmental bodies. The
requestor asks about the
application of Chapter 305
to the engineering firm
as well as to the
individual employee making contact
with representatives of governmental
bodies.

The first question is about the application of Chapter 305
to a situation in which an employee of an engineering firm discusses
a new air pollution control technology with staff members of
the Texas Air Control Board. The discussion takes place at a
lunch paid for by the employee of the engineering firm, and the
employee seeks to convince the staff members that the technology
should be promulgated as a standard by the agency. In the alternative,
the discussion takes place in the Air Control Board offices.

In the next situation a member of an engineering firm asks
a Texas Department of Transportation official what highway construction
projects are being planned by the department.

Another question is whether Chapter 305 applies to a hunting
trip that includes firm employees and state officials and that
is paid for by an engineering firm. The requestor also asks whether
the answer depends on what is discussed during the trip.

A similar question is whether Chapter 305 applies to an employee
of an engineering firm who accompanies an employee of a state
agency to a sporting or cultural event and pays for tickets and
food. The firm does business with the state agency. Again, the
requestor asks whether the answer depends on what is discussed
during the event.

The requestor also asks about the application of Chapter 305
to the following situations.

(a) A member of an engineering firm takes an official of the
Texas Department of Transportation to lunch to inquire about
what highway construction projects are being planned by the department.
The engineering firm employee spends much of the luncheon extolling
the merits of the engineering firm.

(b) An employee of an engineering firm has lunch with a member
of the Texas Department of Transportation to convince the department
to change the routing of a planned road if an engineering firm
client will pay for the road.

(c) An engineering firm employee has lunch with an official
of a government entity which is covered by the Lobby Registration
Law to convince the official of the merits of going to a sole
source purchase rather than utilizing a request for bids. Assume
such a change is in the discretion of the official.

(d) An engineering firm employee has lunch with an official
of a government entity which is covered by the Lobby Registration
Law to convince the official of the merits of going to a sole
source purchase rather than utilizing a request for bids. Assume
such a change would require an amendment of a regulation, a change
the official can influence but not unilaterally make.

(e) A government entity which is covered by the Lobby Registration
Law promulgates a fee curve schedule whereby a set percentage
of each construction project awarded by the entity is allowed
for engineering for a construction project. For example, the
entity allows 3.0% of the construction cost for engineering.
An engineering firm employee visits with an entity official to
convince such official that the percentage is inadequate for
all construction projects.

(f) A government entity which is covered by the Lobby Registration
Law promulgates a fee curve schedule whereby a set percentage
of each construction project awarded by the entity sets a fixed
percentage allowed for engineering for a construction project.
For example, the entity allows 3.0% of the construction cost
for engineering. An engineering firm employee visits with an
entity official to concentrate on increasing the percentage for
a particular construciton project for which bids are about to
be requested by the entity.

The requestor also asks whether a flood control district or
a metropolitan transit authority is a state agency for purposes
of Chapter 305.


AOR-28. The Texas
Ethics Commission has been
asked to consider several
questions about the interpretation
of Texas Civil Statutes,
Article 6252-9b, sec.7A.

The first question is whether a former division head in a
state agency is a "member of the governing body or executive
head of a regulatory agency" for purposes of sec.7A.

The second question is whether a state employee who tendered
his resignation in 1991, effective on January 31, 1992, is subject
to sec.7A even if the employee took vacation time during all
of January.

The third question is whether a former state employee covered
by sec.7A(a) may give his new employer or a client of his new
employer advice in regard to an audit of the client by a state
agency if the former state employee worked on the audit during
his tenure at the state agency. The requestor also asks whether
the former stae employee could give his new employer or a client
of his new employer advice in regard to a subsequent audit of
the same client.


AOR-29. The Texas
Ethics Commission has been
asked to consider whether
unsalaried board members of
state agencies may make
political contributions to candidates
for public offices. The
commission has also been
asked to consider whether
unsalaried board members may
make contributions to candidates
seeking the position of
speaker of the house
of representatives.


AOR-30. The Texas
Ethics Commisison has been
asked to consider whether
a judge, as an officeholder,
may use campaign funds
to purchase electronic equipment
that will be used in
connection with litigation before
the judge.


AOR-31. The Texas
Ethics Commission has been
asked about the application
of the Government Code,
Chapter 305 to certain
consultants. The consultants in
question work with businesses
to help them obtain permits
from agencies such as
the Air Control Board,
the Water Commission, and
the Department of Health.
The consultants' acvitities might
include: (1) filing for
permits; (2) negotiating about
the terms of permits;
(3) negotiating about the
manner in which to abate
a permit violation; and
(4) discussing the best
available technology for a
certain operation. Another example
is that a consultant
may negotiate with the
Workers' Compensation Commission
for approval of an employer's
safety program. The question
presented is whether these
activities, for which the
consultants are compensated, require
the consultants to register
as lobbyists under Chapter
305.


AOR-32. The Texas
Ethics Commission has been
asked to consider whether
certain employees of the
Texas Guaranteed Student Loan
Corporation may be required
to register as lobbyists
under the Government Code,
Chapter 305.


AOR-33. The Texas
Ethics Commission has been
asked to consider whether
a corporation may provide
a place to hunt and
furnish lodging for various
categories of people. The
first question raised is
whether the Government Code,
Chapter 305, the lobby
statute, permits the corporation
to provide these things
members of state government.

Another question is whether elected or appointed members of
state government may accept these things and whether elected
or appointed city officers or city employees may accept them.


Issued in Austin, Texas, on April 27, 1992.

TRD-9205857

Sarah Woelk

Director, Advisory Opinions

Texas Ethics Commission

Filed: April 28, 1992

For further information, please call: (512) 463-5800