.
The Attorney General of Texas
April 16, 1980
MARK WHITE
Attorney General
Ms. Mable Staton Opinion No. NW-17 3
Executive Secretary
Texas Board of Licensure For Re: Whether members of the
Nursing Home Administrators Board of Licensure For Nursing
P. 0. Box 9706 Home Administrators may
Austin, Texas 78766 participate in certain trade
association activities.
Dear Ms. Staton:
You inquire whether ex-officio members of your board can be paid the
per diem and actual expenses provided for in section 4(3) of article 4442d,
V.T.C.S. Section 3 of article 4442d, V.T.C.S., requires that the
Commissioner of Human Resources, or his designee, and the Commissioner
of Health, or his designee, be ex-officio members of the board. Section 4(3)
of article 4442d, V.T.C.S., provides in part that “Board members shall
receive a per diem of $25.00 while engaged in Board business together with
actual and necessary expenses.”
Article 4442d, V.T.C.S., makes no distinction between ex-officio and
regular board members with respect to payment of expenses. We believe ex-
officio members are to receive expenses and per diem unless the
Constitution prevents them from doing so. Article XVI, section 40 of the
Texas Constitution, which prohibits one person from holding two civil offices
of emolument, does not bar a state employee from holding a civil office of
emolument. See Letter Advisory No. 30 (1973). Article XVI, section 40 of
the Texas Constitution, permits a nonelective state officer to hold other
nonelective offices under the state, if the other office is required by state
law. He may receive compensation for the second office, if the provisions
of article 625%9a, V.T.C.S., are complied with. See also Attorney General
Opinion H-5 (1973). If the legislature &sires to prohibit receipt of per diem
by these officials, it may enact a statute to that effect.
You also request our opinion about whether a board member violates
article 4442d, section 3A(l), V.T.C.S., if he receives compensation from a
trade association for teaching a continuing education seminar or other
course for nursing home administrators. Article 4442d, section 3A(l),
V.T.C.S., provides in part that “A member of the board . . . may not: (a) be
an officer, employee, or paid consultant of a trade association in the nursing
p. 550
Ms. Mable Staton - Page Two (NW-1731
home industry.” This article is based on the same policy considerations forbidding any
state employee from accepting other employment which might impair his independence of
judgment in the performance of his official duties. See V.T.C.S. art. 6252-9b. It appears
as though the legislature has determined that sang as an employee of a trade
association in the nursing home industry might impair a board member’s independence of
judgment. A board member who receives compensation from a trade association might
not be as independent as the legislature requires; therefore, board members may not
accept any employment from trade associations, including teaching positions.
The legislature has not spoken specifically to whether board members can serve as
unpaid advisors or directors of trade associations. We believe section 3A(l) of article
44424 V.T.C.S., prohibits a board member from serving as a director of a trade
association in the nursing home industry even if he receives no compensation for that
service. Section 8(b) of article 6252-9b, V.T.C.S., prohibits a state officer or employee
from accepting other employment which might impair his independence of judgment in the
performance of his official duties. Whether this provision bars a particular activity, such
as that of an advisor, is a fact question to be decided by the Texas Board of Licensure for
Nursing Home Administrators. -See Attorney General Opinion H-1223 (1978).
Finally, you request our opinion about whether the National Association of Boards of
Examiners For Nursing Home Administrators is a trade association. This Association is
generally composed of members of agencies that examine, license or register Nursing
Homes and their administrators. “In general use the words ‘trade associations’ convey the
meaning of an association of employers in the same trade.” People ex rel. Padula et al v.
Hughes, 16 N.E.2d 922, 924 (Ill. App. Ct. 1938). In the context of this statute it &es not
appear that this national association of regulators is a trade association. The board must
still consider as a question of fact’ whether association with or employment by this
association would impair a board member’s judgment in his official duties under article
6252-9b, V.T.C.S.
SUMMARY
The ex-officio members of the board may receive per diem and
actual expenses. A member of the Board should not accept any
sort of payment for services rendered from a trade association in
the nursing home industry. Board members may not serve as a
director or other officer of these associations, but they are not
absolutely barred from acting as unpaid advisors as long as their
independence is not jeopardized. Whether article 6252-9b,
V.T.C.S., prohibits unpaid service as an advisor must be determined
by the board on a case by case basis. The National Association of
Boards of Examiners For Nursing Home Administrators is not a
trade association under article 4442d. V.T.C.S.
MARK WHITE
Attorney General of Texas
p. 551
Ms. Mable Staton - Page Three (NW-1731
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Peter Nolan
and Susan Garrison
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Susan Garrison
Rick Gilpin
Peter Nolan
P. 552