Can the Texas fire commission hire someone whose spouse leads a firefighters' association?

Texas AG Opinion JC-0067: When a Fire Service Group Is Not a "Trade Association"

Plain-English summary

The Texas Commission on Fire Protection had a hiring problem. The spouse of the Texas Fire Chiefs' Association's executive director was a finalist for a high-level job in the Commission's Testing and Training Section. A conflict-of-interest statute, section 419.006 of the Government Code, bars the Commission from employing an officer, employee, or paid consultant of a Texas "trade association" (or that person's spouse) in a high-level position. So the Commission's executive director asked the Attorney General whether the Texas Fire Chiefs' Association, the Texas State Association of Fire Fighters, the State Firemen's and Fire Marshals' Association of Texas, or the Texas Association of Fire Educators counts as a "trade association" for that purpose.

The opinion's answer turned on the statute's own definition. Section 419.006(c) does not use "trade association" in a loose, everyday sense. It defines a "Texas trade association" as a nonprofit, cooperative, and voluntarily joined association "of business or professional competitors" in Texas, designed to help its members and their industry or profession with mutual business or professional problems and to promote their common interest. The key phrase is "business or professional competitors." The opinion noted that traditionally a "trade association" means an association of employers in the same trade, and that courts elsewhere have distinguished labor unions from trade associations. The Commission told the Attorney General that none of the four organizations was an association of business or professional competitors (describing the firefighters' group, for example, as a labor organization). Taking that representation as given, the opinion concluded that none of the four was a trade association under section 419.006, so the conflict-of-interest bar did not block the Commission from hiring the spouse.

The opinion was careful about the limits of its answer. Whether any particular organization is a trade association under section 419.006 is ultimately a question of fact, because it requires applying each element of the subsection (c) definition (nonprofit, cooperative, voluntarily joined, of business or professional competitors, and designed for the listed purposes) to the actual organization. The Attorney General's office does not resolve fact questions in an opinion. So the bottom line was conditional: assuming the organizations are not composed of business or professional competitors, they are not trade associations, and the Commission may employ the spouse of one of their officers, managers, or paid consultants in a high-level position.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does section 419.006 actually restrict?
According to the opinion, it bars the Commission on Fire Protection from putting an officer, employee, or paid consultant of a Texas trade association, or that person's spouse, into a commissioner seat or a high-level Commission job (one exempt from the position classification plan or paid at or above step 1, salary group 17).

Why weren't these fire organizations "trade associations"?
Because the statute defines a "Texas trade association" specifically as an association of "business or professional competitors." The Commission represented that the four organizations were not associations of competitors, and on that basis the opinion concluded they did not meet the definition.

Is a labor union a trade association under this statute?
The opinion noted that courts applying the common meaning of "trade association" have distinguished labor unions from trade associations, and it treated the Texas State Association of Fire Fighters (described as a labor organization) as not fitting the definition on the facts given.

Did the Attorney General make a final ruling on each group?
No. The opinion stressed that whether any particular organization qualifies is ultimately a fact question, which the Attorney General's office cannot decide in an opinion. The answer was conditional on the Commission's own description of the organizations.

Background and statutory framework

Section 419.006 of the Government Code regulates conflicts of interest for members and employees of the Commission on Fire Protection. Subsection (a) bars an officer, employee, or paid consultant of a Texas trade association in the field of fire protection from serving as a commissioner or as a "high-level employee," defined as one exempt from the state's position classification plan or compensated at or above step 1, salary group 17. Subsection (b) extends the same bar to the spouse of such a person. Subsection (c) supplies the controlling definition of "Texas trade association": a nonprofit, cooperative, and voluntarily joined association of business or professional competitors in the 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.

The opinion observed that section 419.006 does not elaborate on what an "association of business or professional competitors" is, and that no judicial or attorney general opinion had interpreted the phrase as used in that section. It looked to similar conflict-of-interest provisions for other agencies (the Board of Medical Examiners under article 4495b, the Food and Fibers Commission under Agriculture Code section 42.010, the Department of Banking under Finance Code section 12.107, and the Commission on the Arts under Government Code section 444.006) and to prior letter opinions (LO-98-054 and LO-96-043) recognizing the purpose of such provisions: to protect agency decision-making from a private entity's undue influence and to keep an agency from developing close ties with professional trade organizations. The provision originated as a Sunset Commission across-the-board recommendation. For the ordinary meaning of "trade association," the opinion cited Black's Law Dictionary, the Illinois case People ex rel. Padula v. Hughes, and the New York case People v. Masiello, the latter two distinguishing labor unions from trade associations, and its own earlier Opinion MW-173 (1980). It cited DM-98 (1992), H-56 (1973), M-187 (1968), and O-2911 (1940) for the rule that the office does not resolve fact questions.

Citations

Statutory provisions:

• Tex. Gov't Code Ann. § 419.006(a), (b), (c) (Vernon 1998)
• Tex. Gov't Code Ann. § 444.006(b), (c), (g) (Vernon 1998)
• Tex. Rev. Civ. Stat. Ann. art. 4495b, § 2.05(g), (h), (i) (Vernon Supp. 1999)
• Tex. Agric. Code Ann. § 42.010 (Vernon Supp. 1999)
• Tex. Fin. Code Ann. § 12.107 (Vernon 1998)

Cases:

• People ex rel. Padula v. Hughes, 16 N.E.2d 922 (Ill. App. Ct. 1938)
• People v. Masiello, 31 N.Y.S.2d 512 (N.Y. Sup. Ct. 1941)

Attorney General opinions referenced: LO-98-054, LO-96-043, MW-173 (1980), DM-98 (1992), H-56 (1973), M-187 (1968), O-2911 (1940).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0067
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0067.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS
JOHN CORNYN

June 10, 1999

Mr. Gary L. Warren, Sr.
Executive Director
Texas Commission on Fire Protection
P.O. Box 2286
Austin, Texas 78768-2286

Opinion No. JC-0067

Re: Whether the Texas Fire Chiefs' Association, the Texas State Association of Fire Fighters, the State Firemen's and Fire Marshals' Association of Texas, or the Texas Association of Fire 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'T CODE ANN. § 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. [Footnote 1: We were unable to locate, and you did not submit, any information describing the purpose or mission of the Texas Fire Chiefs' Association. You characterize the Texas State Association of Fire Fighters as "a labor organization representing paid fire fighters." From our own research, we understand that the Texas State Association of Fire Fighters provides to fire and emergency-medical-services personnel "support and service," including "training, on[-]site support, assistance in grievance representation, bargaining and mediation." Texas State Assoc. of Fire Fighters, About the Texas State Association of Fire Fighters (last modified Oct. 2, 1996) http://www.tsaff.org/guide.html. The State Association of Fire Fighters also assists local fire fighters organizations and their members in disciplinary appeals, contract negotiations, mediations, and elections. See id. In addition, the State Association of Fire Fighters lobbies on behalf of 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 fire fighters." We have found information stating that the State Firemen's and Fire Marshals' Association "promote[s], unit[es], represent[s,] and educate[s] the fire service of Texas." State Firemen's & Fire Marshals' Association of Texas, Mission Statement (last modified Oct. 23, 1998) http://www.sffma.org/mission.html. Finally, we were unable to obtain any information on the Texas Association of Fire Educators, and you did not provide any.]

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, of the position classification salary schedule" (a "high-level employee"). Id. § 419.006(a). In addition, the spouse of an officer, employee, or paid consultant of a Texas trade association may not be a commissioner or a high-level Commission employee. See id. § 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. CIV. STAT. ANN. art. 4495b, § 2.05(g), (h), (i) (Vernon Supp. 1999) (Board of Medical Examiners); AGRIC. CODE ANN. § 42.010 (Vernon Supp. 1999) (Food & Fibers Comm'n); TEX. FIN. CODE ANN. § 12.107 (Vernon 1998) (Dep't of Banking); TEX. GOV'T CODE ANN. § 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, which recommended section 419.006's adoption in 1991, see HOUSE COMM. ON GOV'T ORGANIZATION, BILL ANALYSIS, Tex. C.S.S.B. 383, 72d Leg., R.S. (1991), proposes similar conflict-of-interest provisions as an across-the-board recommendation. See TEXAS SUNSET COMM'N, Across the Board Recommendations 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 SUNSET ADVISORY COMM'N, Recommendations to the Governor of Texas & Members of the Seventy-Second Legislature, Final Report 5, 118 (1991)).

Traditionally, the phrase "trade association" refers to an association of employers in the same trade. See People ex rel. Padula 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. See People ex rel. Padula, 16 N.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 of section 419.006 of the 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.

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.

Yours very truly,

JOHN CORNYN
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