Untitled Texas Attorney General Opinion

OFFlCE OF THE ATTORNLY GENEraL STATE OF TEX,+S

JOHN CORNYN

June lo,1999

Mr. Gary L. Warren, Sr. Opinion No. JC-0067
Executive Director
Texas Commission on Fire Protection Re: Whether the Texas Fire Chiefs’ Association,
P.O. Box 2286 the Texas State Association of Fire Fighters, the
Austin. Texas 18768-2286 StateFiremen’s andFireMarshals’ Associationof
Texas, or the Texas Association ofFire Educators
is a “trade association” for purposes of section
419.006 of the Government Code (RQ-1203)

Dear Mr. Warren:

The spouse of an officer, manager, or paid consultant of a Texas trade association in the field
of fire protection is prohibited from becoming a high-level employee with the Commission on Fire
Protection (the “Commission”). TEX. GOV’TCODEANN. 9 419.006(b) (Vernon 1998). You ask
whether any of four particular organizations is a trade association for purposes of section 419.006.
While the determination of whether any particular organization is a trade association for purposes
of section 419.006 is ultimately a question of fact, we believe, based upon the information you
provide, that the organizations about which you inquire are not trade associations for purposes of
invoking the conflict-of-interest prohibitions of section 419.006(b).

You state that the issue has arisen because the spouse of Texas Fire Chiefs’ Association’s
executive director is a final candidate for a position in the Commission’s Testing and Training
Section. We understand that this position normally is a high-level position that would be subject to
section 419.006. In addition to the Texas Fire Chiefs’ Association, you inquire about three other
organizations: the Texas State Association of Fire Fighters; the State Firemen’s and Fire Marshals’
Association of Texas; and the Texas Association of Fire Educators. Although you tell us very little
about any of these organizations, you state that none of them are associations of business or
professional competitors.’

‘We were unable to locate, and you did not submit, any information describing the purpose CDT mission of the
Texas Fire Chiefs’ Association. You characterize the Texas State Association of Fire Fighters as “a labor organization
representing paid tire fighters.” From our own research, we understand that the Texas State Association ofFire Fighters
provides to tire and emergency-medical-services persotlnel “support and service,” including “training, on[-Isite support,
assistance in grievance representation, bargaining and mediation.” Texas State Assoc. of Fire Fighters, Abour the Texas
Slate Association of Fire Fighters (last modified Oct. 2, 1996) . The State
Association of Fire Fighters also assists local tire fighters organizations and their members in disciplinary appeals,
(continued...)
Mr. Gary L. Warren, Sr. - Page 2 (X-0067)

Section 419.006 of the Government Code regulates conflicts of interest for Commission
members and employees. Under that section, an officer, employee, or paid consultant of a Texas
trade association may not be a commissioner or a Commission employee “who is exempt from the
state’s position classification plan or is compensated at or above the amount prescribed by the
General Appropriations Act for step 1, salary group 17, ofthe position classification salary schedule”
(a “high-level employee”). Id. 5 419.006(a). In addition, the spouse of an ofticer, employee, or paid
consultant of a Texas trade association may not be a commissioner or a high-level Commission
employee. See id. 3 419.006(b). The phrase “Texas trade association” is defined for the purposes
of section 419.006 as an association of “business or professional competitors”:

For the purposes of this section, a Texas trade association is a nonprofit,
cooperative, and voluntarily joined association of business or professional
competitors in this state designed to assist its members and its industry or profession
in dealing with mutual business or professional problems and in promoting their
common interest.

Id. $ 419.006(c). Section 419.006 does not elaborate on what an “association of business or
professional competitors”might be, and we find no judicial or attorney general opinions interpreting
the phrase “Texas trade association” as it is used in section 419.006.

But in examining similar conflict-of-interest provisions, see,e.g.,
TEX.REV.Crv.STAT.ANN.
art. 4495b, 3 2.05(g), (h), (i) (Vernon Supp. 1999) (Board of Medical Examiners); AGRIC.CODE
ANN. 5 42.010 (Vernon Supp. 1999) (Food & Fibers Comm’n); TEX. FIN. CODEANN. 5 12.107
(Vernon 1998) (Dep’t of Banking); TEX.GOV’TCODEANN. $ 444.006(b), (c), (g) (Vernon 1998)
(Comm’n on the Arts), this office has perceived a need “to protect the integrity of agency decision-
making from a private entity’s undue influence.” Tex. Att’y Gen. LO-98-054, at 2. The Sunset
Commission, whichrecommendedsection419.006’sadoptionin ~~~~,~~~HousECOMM.ONGOV’T
GRGANIZATION,BILLANALYSIS,Tex. C.S.S.B. 383,72dLeg.,R.S. (199l),proposessimilarconflict-
of-interest provisions as an across-the-board recommendation. See TEXASSUNSETCOMM’N,Across
the BoardRecommendations 2 (1988). According to the Sunset Commission, the conflict-of-interest
provision prevents an agency from developing “close ties with professional trade organizations
and other interested groups” because such ties may not be in the public interest. See Tex. Att’y Gen.
LO-96-043, at 3 (quoting SUNSETADVISORY COMM’N,Recommendations to the Governor of Texas
& Members of the Seventy-Second Legislature, Final Report 5, 118 (1991)).

‘(...continued)
conlract negotiations, mediations, and elections. See id. In addition, the State Association of Fire Fighters lobbies on
behalfof its members and offers educational opportunities to its members. See id. You characterize the State Firemen’s
and Fire Marshals’ Association as “representing mainly volunteer tire fighters.” We have found information stating that
the State Firemen’s and Fire Marshals’ Association “promote[s], unit@], represent[s,] and educate[s] the fre service
of Texas.” State Firemen’s & Fire Marshals’ Association of Texas, Mission Statement (last modified Oct. 23, 1998)
. Finally, we were unable to obtain any information on the Texas Association of
Fire Educators, and you did not provide any.
Mr. Gary L. Warren, Sr. - Page 3 (X-0067)

Traditionally, the phrase “trade association” refers to an association of employers in the same
trade. See People ex rel. Pad& v. Hughes, 16 N.E.2d 922,924 (Ill. App. Ct. 1938); cf:BLACK'S
LAW DICTIONARY 1338 (5th ed. 1979) (defining “trade association” as “association of business
organizations having similar problems and engaged in similar fields formed for mutual protection,
interchange of ideas and statistics and for maintenance of standards within their industry”). Thus,
this office previously has determined that the National Association of Boards of Examiners for
Nursing Home Administrators, which is composed of agencies that examine and license or register
nursing homes and nursing home administrators, probably is not a trade association. See Tex. Att’y
Gen. Op. No. MW-173 (1980) at 2. Notably, courts in other jurisdictions that have applied the
common understanding of the term “trade association” have distinguished labor unions from trade
associations. SeePeople ex rel. Pad& 16N.E.2d at 924; People v. Masiello, 31 N.Y.S.2d 512,518
(N.Y. sup. ct. 1941).

Assuming, as you tell us, that the organizations about which you ask are not associations of
business or professional competitors, we conclude that none of them are trade associations for
purposes ofsection 419.006 ofthe Government Code. Ultimately, whether a particular organization
is a trade association for purposes of section 419.006 depends upon whether the association satisfies
the definition found in subsection (c), that is, whether the association is (1) nonprofit, (2)
cooperative, and (3) voluntarily joined, as well as whether the association is one (4) of business or
professional competitors in this state and is (5) designed to assist its members and its industry or
profession (a) in dealing with mutual business or professional problems and (b) in promoting their
common interest, Determining each of these elements requires the resolution of fact questions,
which this office is unable to answer. See, e.g., Tex. Att’y Gen. Op. Nos. DM-98 (1992) at 3; H-56
(1973) at 3; M-187 (1968) at 3; O-2911 (1940) at 2. Given our assumption, however, we believe
the Commission may employ in a high-level position the spouse of an officer, manager, or paid
consultant of any of the organizations you list,
Mr. Gary L. Warren, Sr. - Page 4 (X-0067)

SUMMARY

Assuming that an organization is not composed of business
and professional competitors, it is not a trade association for purposes
of section 419.006 of the Government Code.

Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General