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Advisory Council on Ethics (ACE)

Advisory Council on Ethics Opinion No. 3

June 3, 1997

When is it appropriate for a TDCJ trainer to conduct private training? Who can the audience be? Can a trainer present a course that they train as part of their job? Does it matter if the lesson plan from work is re-created? How (when, where) can a trainer solicit business? May a trainer use any information from courses they train at TDCJ, or from courses trained by others in TDCJ?

These questions raise interesting and timely legal issues for state employees who "moonlight," or would like to. Trainers may be particularly likely to encounter these issues due to the marketability of their work. It would be relatively easy to run afoul of state law by mishandling work outside of state employment.

There are two Penal Code issues that are potentially raised by these questions:

First is the prohibition on accepting an "honorarium" (§36.07), or speaker's fee. (Attorney General Opinion MW-90 (1979) equated these two terms.) The essence of the crime is accepting an honorarium "in consideration for services that the public servant would not have been requested to provide but for the public servant's official position of duties." In other words, you cannot take compensation for giving a presentation if the deciding factor for why you were asked to give the presentation is your job title or official status, rather than the expertise you possess. The Texas Ethics Commission has written that "university employees are often asked to perform services because of their academic expertise and not because they hold a position at a particular institution," (Ethics Advisory Opinion No. 305, 1996), and that "[w]e assume that a fingerprint expert is generally asked to perform services because of their expertise and not because they are employed by a particular city" (EAO No. 213, 1996).

In response to the question regarding who the audience can be, if the recipient of the training would ask you to provide it even if you were not a trainer for TDCJ, then it does not violate the honorarium prohibition to accept compensation for providing the training. As the Ethics Commission put it, ask yourself, "Would my services be as useful or desirable if I did not hold a position with the government?" (EAO No. 305, footnote 2, 1996). Presenting the same course in private training that the trainer presents at work may raise the issue of being asked to make the presentation because of official status; it is a factual question that cannot be definitely resolved in this opinion.

The second Penal Code issue here is the prohibition on misapplication of state resources, §39.01. In order for a violation of this section to occur, there must be both: (1) a misuse of state property (including state time), services, or personnel, and (2) the misuse must be made with intent to obtain a benefit or to harm someone else.

Assuming the training is for compensation, clearly you cannot solicit business or work on private training on state time or on state property; similarly, state equipment cannot be used to prepare or present private training. Re-creating state training materials to use for private training and using information gained at work, on the other hand, probably do not violate the prohibition. (Assuming the information used is not confidential, which would violate yet another section of the Penal Code.) There is an analogy here to the honorarium prohibition; the law cannot realistically prohibit the private use of knowledge, expertise, and skills that we gain in the public workplace.

Finally, all state officers and employees are directed by law (non-Penal Code) to conduct their business and professional activities in such a way that the activities could not reasonably be expected to induce them to reveal confidential information gained from their official jobs or impair their judgement in performing their official duties. Government Code §572.051(2), (3). This statute embodies the "should nots," which direct our conduct as public servants away from the borderline between legal and criminal, but which do not themselves carry any penalties.

Executive Directive PD-80 governs moonlighting, and allows TDCJ employees to "avail themselves of outside employment providing it does not:

  1. Represent a conflict of interest;
  2. Interfere with regularly assigned duties or working hours;
  3. Utilize or derive benefit from state resources; or,
  4. Represent conduct contrary to the best interests of the agency."

The directive goes on to require notification of the employee's supervisor, who is responsible for ensuring that no conflict of interest exists. While item No. 2 is self explanatory; item No. 3, the use of use of state resources, mirrors the Penal Code analysis. The issues of "conflict of interest" and "conduct contrary..." are the more factually difficult questions to resolve, and of course depend on the particular circumstances. It is possible to imagine a situation where outside employment would not present a Penal Code violation, but violate one or both of these restrictions.

When considering these types of situation, here are some suggestions:

  • obtain your supervisor's permission, although PD-80 does not explicitly require it.
  • obtain your supervisor's permission, although PD-80 does not explicitly require it.
  • ask yourself if you are reluctant to explain to someone else, what your are about to do because it doesn't sound or feel right.