Part 1.
TEXAS DEPARTMENT OF TRANSPORTATION
Chapter 1.
MANAGEMENT
Subchapter B. PUBLIC MEETINGS AND HEARINGS
43 TAC §1.4, §1.5
The Texas Department of Transportation (department)
adopts amendments to §1.4, Public Access to Commission Meetings,
and §1.5, Public Hearings, both concerning public comment. The
amendments to §1.4 are adopted without changes to the proposed
text as published in the February 10, 2012, issue of the
Texas Register
(37 TexReg 666) and will
not be republished. The amendments to §1.5 are adopted with changes
to the proposed text as published in the February 10, 2012, issue
of the
Texas Register
(37 TexReg 666).
EXPLANATION OF PROPOSED AMENDMENTS
S.B. No. 1420, 82nd Legislature, Regular Session, 2011, the department's
sunset bill, amended Transportation Code, §201.802(a), to require
the Texas Transportation Commission (commission) to develop and implement
policies that provide the public with a reasonable opportunity to
appear before the commission and speak on any issue under the jurisdiction
of the department, rather than under the jurisdiction of the commission,
as required before the amendment. The commission previously implemented
the policies that were required under the previous statute. This rule
amends the current rules to clarify that the commission will hear
public comment on an issue within the jurisdiction of the department.
The change will have little, if any, effect on the commission's operations.
The commission is ultimately responsible for the operation of the
department and for the related policy-making decisions; therefore,
the jurisdiction of the commission includes all of the matters that
are within the jurisdiction of the department.
Amendments to §1.4 change the word "commission" to "department"
in subsections (c)(2) and (d)(1) as required by the statutory change.
The change to subsection (c)(2) authorizes the chair to place an item
on a commission meeting agenda if the chair determines that the proposed
item is within the jurisdiction of the department and concerns a matter
with sufficient public interest to justify its placement on the agenda.
The change to subsection (d)(1) provides that at each regular business
meeting after consideration of the posted agenda, the commission will
receive public comment on any other matter that is under the jurisdiction
of the department.
Amendments to §1.5 change the word "commission" to "department"
in subsection (a)(8). The change authorizes the commission to hold
public hearings to accept public comment on any issue under the jurisdiction
of the department if acceptance of the public comment is required
by law or considered appropriate by the commission.
After the publication of these proposed rules, the department determined
that additional non-substantive changes to §1.5 are necessary
to provide accurate statutory and rule citations within the section.
Amendments to §1.5(a)(2) provide a reference to the specific
statutory authority for a Gulf Intracoastal Waterway (GIWW) hearing
by changing the citation from Transportation Code, Chapter 51, to
Transportation Code, §51.006, and add a cross-reference to Chapter
2 of the department rules which apply to the holding of a GIWW hearing.
Amendments to §1.5(a)(3), which concerns hearings relating to
proposed transportation projects, add a cross-reference to Chapter
2 of the department rules to correct inaccuracies in the references
to rule sections that were caused by the recent reorganization of
that chapter.
COMMENTS
No comments on the proposed amendments were received.
STATUTORY AUTHORITY
The amendments are adopted under Transportation Code, §201.101,
which provides the commission with the authority to establish rules
for the conduct of the work of the department.
CROSS REFERENCE TO STATUTE
Transportation Code, §201.802.
§1.5.Public Hearings.
(a)
Subject of hearings. The commission may hold public
hearings to:
(1)
consider the adoption of rules, in accordance with
the Administrative Procedure Act, Government Code, Chapter 2001;
(2)
receive evidence and testimony concerning the desirability
of acquiring dredge material disposal sites and of any widening, relocation,
or alteration of the main channel of the Gulf Intracoastal Waterway,
in accordance with Transportation Code, §51.006 and Chapter 2
of this title (relating to Environmental Review of Transportation
Projects);
(3)
provide for public input regarding the design,
schematic layout, and environmental impact of transportation projects,
in accordance with Transportation Code, §203.021, and Chapter
2 of this title;
(4)
consider maximum prima facie speed limits on highways
in the state highway system that are near public or private elementary
or secondary schools or institutions of higher education, in accordance
with Transportation Code, §545.357;
(5)
annually receive public input on the commission's
highway project selection process and the relative importance of the
various criteria on which the commission bases its project selection
decisions, in accordance with Transportation Code, §201.602;
(6)
receive comments from interested persons prior
to converting a segment of the non-tolled state highway system to
a toll project under Transportation Code, §228.203;
(7)
receive comments from interested parties prior
to approving any financial assistance under Transportation Code, §21.111,
relating to aviation facilities development; and
(8)
provide, when deemed appropriate by the commission
or when otherwise required by law, for public input regarding any
other issue under the jurisdiction of the department.
(b)
Authorized representative. The executive director
or an employee of the department designated by the executive director
may conduct public hearings held under subsection (a)(1), (3), (7),
and (8) of this section.
(c)
Conduct and decorum. Public hearings will be conducted
in a manner that maximizes public access and input while maintaining
proper decorum and orderliness, and will be governed by the following
guidelines.
(1)
Questioning of those making presentations will
be reserved to commissioners, the executive director, or, if applicable,
the presiding officer.
(2)
Organizations, associations, or groups are encouraged
to present their commonly held views and same or similar comments
through a representative member where possible.
(3)
Presentations shall remain pertinent to the issue
being discussed.
(4)
A person who disrupts a public hearing must leave
the hearing room if ordered to do so by the chair or the presiding
officer.
(5)
Time allotted to one speaker may not be reassigned
to another speaker.
(d)
Disability accommodation. Persons with disabilities
who have special communication or accommodation needs and who plan
to attend a hearing to be held by the commission may contact the office
of the secretary to the commission in Austin. In the case of a hearing
to be conducted by the department, those persons may contact the public
affairs officer whose address and telephone number appear in the public
notice for that hearing. Requests should be made at least two days
before the hearing. The department will make every reasonable effort
to accommodate these needs.
(e)
Language accommodation. For a hearing held in an
area with a substantial Spanish speaking population, the department
will provide:
(1)
notice of the hearing in both English and Spanish;
and
(2)
upon request, Spanish translation.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise
of the agency's legal authority.
Filed with the Office
of the Secretary of State on April 27, 2012.
TRD-201202166
Bob Jackson
General Counsel
Texas Department of Transportation
Effective date: May 17, 2012
Proposal publication date: February 10, 2012
For further information, please call: (512) 463-8683
The Texas Department of Transportation (department) adopts
amendments to §10.6, concerning Conflict of Interest, and §10.102,
concerning Consequences of Violation. The amendments to §10.6
and §10.102 are adopted with changes to the proposed text as
published in the February 10, 2012, issue of the
Texas Register
(37 TexReg 668).
EXPLANATION OF ADOPTED AMENDMENTS
The department is adopting these amendments to expand the definition
of conflict of interest to include revolving door restrictions for
certain former upper-level employees and to add additional consequences
to the current sanction provisions for violating the new prohibitions.
Amendments to §10.6 expand the definition of conflict of interest
to include certain activities that former upper-level department employees
may perform on behalf of their new employers. The rule imposes on
certain former upper-level employees of the department a one-year
ban that prohibits them from soliciting business from the department
or attempting to influence the Texas Transportation Commission (commission)
on behalf of a business entity. The ban does not apply for interim
positions and does not apply to personal communication with the department
or commission unless the individual attempts to solicit business or
influence a decision on behalf of the current employer. Subsection
(b)(2) prohibits all former employees whose last salary was at or
above the level of the state's Salary Group A17 from working for a
business entity on any matter that they worked on while employed by
the department. Subsection (b)(2) is similar to the prohibition in
Government Code, §572.054(b), which is subject to statutory interpretation
by the Texas Ethics Commission. The department will follow the Texas
Ethics Commission's opinions related to that statutory provision in
making its determinations under subsection (b)(3). Subsection (e)
provides a method for a former employee or entity that is subject
to subsection (b) to ask for a determination of whether a conflict
of interest would exist in a specified situation. The department will
respond in writing to a proper request. Subsection (f) makes subsection
(b)(1) applicable only to employees who leave the department on or
after the effective date of these rules.
Appeals would be handled through existing appeals processes. A
disqualification could be appealed by the filing of a protest, denial
of payment could be appealed by the filing of a contract claim, and
regular sanctions will be handled through the sanction appeal process.
The amendments to §10.6 are needed in order to provide a fair
and unbiased contracting system and to ensure high standards of ethics
and fairness in the administration of the department's programs.
Amendments to §10.102 allow the department to impose non-sanction
consequences for entities whose employees violate the new provisions
of §10.6 under a contract with the department. In addition to
possible sanctions, the department may disqualify an entity from participating
in the contract or it may refuse to pay the entity for any work performed
by the former employee under the contract. This amendment is intended
to deter violations of the revolving door restrictions and to provide
the department with an appropriate remedy should a violation occur.
Having a former department employee on staff does not, in itself,
constitute a violation of these rules and will not automatically disqualify
an entity from any contract or payment. The department will not disqualify
an entity or refuse payment if the entity was properly acting in reliance
on a written determination issued by the department under §10.6(e).
COMMENTS
Comments on the proposed amendments were received from the American
Council of Engineering Companies of Texas (ACEC) and from an individual.
Comment: One commenter recommended that the words "at or" be deleted
from §10.6(c)(1) because it would, in some instances, subject
district engineers, division directors, office directors, and region
directors to the same restrictions as members of the Administration.
Response: The department agrees that all positions at or above
the level of district engineer, division director, office director,
and region director should be subject to the same restrictions. Section
10.6(b)(1) has been revised to apply a one-year ban on certain contacts
with the department to all former employees at or above the level
of district engineer, division director, office director, or region
director.
Comment: One individual commented that these post-employment restrictions
might discourage qualified professionals from accepting upper-level
positions at the department.
Response: The department disagrees with this comment. The revolving
door restrictions merely restate current law, and the time restriction
on influencing the department does not prevent former employees from
accepting private-sector employment, it bars only certain limited
actions that could be detrimental to the public trust.
Comment: ACEC and one other commenter recommended that the changes
be made to apply only to employees who separate from the agency after
the effective date of the changes.
Response: The department agrees with this comment with regard to
the one-year ban and has added §10.6(f) to make the ban applicable
only to individuals who leave the department on or after the effective
date of the rule. The department declines to add a grandfather clause
for the general revolving door restrictions because those restrictions
are not different than currently applicable state law.
Comment: ACEC commented that the department should not expand its
rules beyond the law.
Response: The department disagrees with this comment. Any behavior
that might reasonably give rise to a perception that favoritism plays
a part in the award of department contracts is harmful to the integrity
of the department's contracting system and serves to discourage qualified
providers from participating. The rule's modest expansion of the provisions
of the revolving door statutes to the higher-level administrative
positions will address those concerns and will reinforce the department's
commitment to integrity and ethical behavior.
Comment: ACEC commented that there is no basis for distinguishing
between for-profit entities and government and nonprofit entities.
Response: The department distinguishes between for-profit entities
and government and nonprofit entities because the legislature has
done the same in the revolving door statute. (See the definitions
of "person" and "business entity" in Government Code, §572.002(7)
and (2), respectively.) A major purpose of revolving door laws is
to preserve current government employees from being influenced, consciously
or unconsciously, by the prospect of potential lucrative employment
when making decisions that affect private entities. Entities that
are not driven by profit motives would not have the same incentive
to make employment offers to former department employees.
Comment: ACEC questioned whether the department is a regulatory
agency under the revolving door statute and commented that the wording
in §10.6(b)(3) conflicts with the revolving door statute.
Response: The department is a regulatory agency. The revolving
door statute defines "regulatory agency" as any statewide executive
agency having the power to adopt rules (Government Code, §572.002(8)
and §572.004). The language in the rule closely tracks the language
in the revolving door statute, and the department will follow the
Texas Ethics Commission's opinions related to that statutory provision
in making determinations under subsection (b)(3).
Comment: ACEC commented that the revolving door prohibitions should
not be lifetime.
Response: The rule merely restates the lifetime prohibition found
in the revolving door statute.
Additional change:
The department, in its discretion rather than in response to comments,
determined that a change to the proposed rules is necessary to provide
more certainty for persons affected by the rules. The change adds
new subsection (e) to §10.6 which provides a method for a former
department employee or entity that is subject to the rules to ask
for a written determination of whether a conflict of interest would
exist in a specified situation. The department will promptly respond
to a written request that contains a concise explanation of the relevant
facts of the situation. An accompanying change added in §10.102(b)
prohibits the department from imposing sanctions on an entity on the
basis of the entity violating the revolving door rules in a particular
situation if the entity properly acted in reliance on a written determination
of the department provided under §10.6(e).
Subchapter A. GENERAL PROVISIONS
Chapter 10.
ETHICAL CONDUCT BY ENTITIES DOING BUSINESS WITH THE DEPARTMENT