# TheAttorney GeneralofTexas

.“MMAlTOX **!tomey General**  

### December31, 1984

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AnEqualOwmlunltvl dflmWlw ActIon En-‘pfovn Wr.BeymouL. **Bpua** Ccfmishnm of l!dut~.tioo TaxaS Educatiou Agamy 

### 201East 11th Street Austin, Texas 

### 78701. opiniou No. su-208
Bl2: Whether au iudividual employed in rolla capacity by school district for more **than** +woyears but promoted to school principal tan months before her husband became a trustee maycontinue to seme a* principal

Deer CodSBiOfWT ByUUm:



### '..:You raque8t 

### eninterprsutiouof the **nepotim etatute,**  **erticle 5996a.** 

### V.T.C.S. **Par a&z** 

..~

### Must tlba 

### Board of Trustees of San Beuito Cousolldaccd Indepeudmt School District [hereinaftar San Banito CISD] terminate from all employmaut with **the** district a school principal who had ,mrmad as'-school principal for ouly ten moutha when her husbaud was elected **to the**  **San** Beuito cl:Z;DBoard of Trustees when, prior 

### toher appoilltmeut as prirlcipol, she had remed continuously 'as a school supervisqr vith San

- -..-_ 

### Beuito'CI:SI'for aperiod. of time iti eitcesa of 24 

### mouths?
The San Ben:lto School District 'does uot offer eoutinuing coatracta , under which **a** teacher ia entitled to "continue in his poeitiou or aposi@u with the school district" **vithout the**  necessity 

### for anuual 

### reappointment.Educ. Code 113.107. (Empba.sls added). Therefore. va need :mot**consider** howto recoucile the **uapotism** statute with the coutinuin,g contract provisions of **the** Education Code. See Uev Mexico State 

### Board ai Educstion v. Board of Education of Alamogordo Public @ho01 District, 624P.2d 530 (N.M. 1981).
The relevant portion of the nepotism statute. article 5996a. V.T.C.S. sreadn ao ~follows:



### Woofficer of 

### thisState nor any

### office?of any 

### district,county, city, precinct, rchool district,
or **other** qunicipal subdivision of this State, norHr. SaymonL. Bpnum- Page 2 (JPl-288)

sny officer or member of any State district. county, city, echoal district or other muolclpal board

. . . ah611 appoint, or vote for, or confirm the appointment to any office, position,~ clerkahlp, employment;? duty. of any pereon related vithln the second dcllrae by affinity orwithin the third degree by consanguinity to the person 60 appointing or aovo~::tng.or toany other member of sny such board, the Legislature, or court of which such pereoo ao appointing or voting ma9 be a member. when the salary, feea. or compenaotion of such appointee is to be paid for, directly or indirectly, out of 3.cfrompublic funda or fees of office of any ki,nd or character whatsoever; provided, thst not’hlng herein contained, nor in any other nepotism l.awcontained in any charter or ordinance of any municipal corporation of thla State, shall prever,t the appoiutmant, voting for,
or confirmation of anypersonwho ahall hsve been continuously as&ad in any such officec position, clerkehie. employment or duty for a period of two (2) ‘rears prior to the election or appointment of the-officer or member appointing. voting for, or conflrming the appointment, or to the election or c.p$ointmant of the officer or **member**related to ruchemployee In the prohibited degree. (lImphaeis added).
This statute prohibits a school board from employing or confirming the employment of a‘persoo related to s school trustee within the second degree by affinity. Theschool principal IS related to her huaband by affinity within s prohibited degree. **Attorney** General Oplnioa V-785 (1949). Anexception within the nepotism statute allows the continued service of “auy person vho shall have been continuously employed **In** sny such office, .poaition. clerkship, employment or duty ” for two yesrs prior to the election of his relative to the school board. Whenthe languege oil a statute fa plain and uombiguoua, it met be given effect according to its 

### tense. Board 

### of Insurance C&saiooers of Texas v. Gjuardian Life Insurance Co. of Texas, 180 S.W.2d 906 (Tax. 1944). The%xceptior. .Ipplies only where the employee hes been continuously employl:d for twoyears in the “office, position, elerkahip. employment or dut:r” held whenhis relativr become6 aschool board member. See Letter **Advisory No.**  151 (1978).

- 10 our opinion, vhen the board takes action to reassign an employee to enhanced respone;ibilities. it has appointed him to an

“office. position, clerkship, employment or duty.” The employee’ s length of continuous service for purposes of the nepotism lawwill be determined from the time of that board **action,** rather than from **its**

p. 1278My.uymn L. B9num- Psge 3 (,JM-288)

initial hiring **of** the smployl:e. However, ve do not believe that an adjustment in employee duties or achange in job responsibilities made at anadministrative level be:Lovtheboardwill constitute appointment to anev position for purpose,, 

### ofcomputing the **two-year** proviso. The nepotism lav **is** concerned with the relationship betveen board member6 and the individual employee; zha board's action to appoint an employee **to a**  **poaltion** Involving incrcaaed authority or additional **sahrY** is the significant event. **Chsngea** in reaponsibilitles and job deecriptiona made by admiois~:rstors subordinate to the board do not interrupt the employment rela::tonship established vheo theboard first hired the employee and thus do not start s nev tvo-year period running.

In the present case, sch,z,l board action van necessary to promote the amployee from school supervisor to principal. Section 23.28 of the Education Code governs the employment of school principals in school districta vhich have rwe adopted the continuing contract law.

(a) The board ofi truetaaa of any independent school district me9employ by contract a superintendent, s princip~rl. or principals, teachers, or other executive officers for a term not to exceed themaximurnspecified inthis,section.
The hiring decisions are vltll:Ln the exclusive authority **of** the board 

### oftrustees.Pana v. Rio Griwde City Consolidated Independent School District, 616S.W.Zd658 (Tex: Civ. App. - Eastland 1981. nowrit).
Since the school board appointed the employee in this case to the position of principal 01119ten months before her husband joined ~the board. her employment as prjncipal is not protected by the tvo-year proviso. Article 5996a. V.T.C.S.. forbids the board from taking any action to rehire her or confirmher employment as school principal. She ma9 finish out her contract, but she ma9 **not** enter into a **new** 

### contractas principal vith the school board on which her husband sew88

. Attorney General C$inions MU-286 (1980); H-857 (1971). Of course, If her husband res,igns or othervise leaven his position onthe board before her contract is tobe reneved, the board maycontinueher
as principal.
She may, however, be reinstated under certain conditions to her former position as school supervisor. because such' reinstatement is not an appointment to a pol%:ition of enhanced status and authority which is the object of thti: nepotism statute's proscription. Her reinstatement to the school wpervlsor position ma9be deemed to fall vithio the two-year proviso IX,the **extent** that her contractual duties
as principal. apart from th'e status and enhanced authority of that office, reflect continuity vieh her duties as school supervisor. Whether such continuity exists' Is essentially a factual **matter** which

p. 1279Mr. P~ymonL. Bynum- Pspe 4 (JM-288)

this office cmuot resolve. wabelieve 

### thstit would be contrary to the Purpose 

### of the statute to deprive a public employee in these circmstances of the protection 

### of the proviso when the ultimate resolution of her employment pwritiou involves sn actual demotion in rank and respousibility.
**Attorney** General Opinion V-1142 (1951) appears to have reached s conclusiou inconsistent uith 

### ourcouclusiou. This opinion concerned a county employee whose brother was elected 

### tothe 

### conmiseionera court. Prior 

### tothe 

### timehis brother wok office, the employee had served the county continuously for twenty-five 

### monthe,first with the county terracing comittee and then wtth the roed and bridge department in Precinct No. 2. The ooinion concluded that the individual was

“coutinuously employed by-the county in ooe capacity or another” 

### for the requisite period, and he could therefore keep his job after his brothe& ‘s assumption 

### ofoffice. It did not expressly consider whether the assigument to the road and bridge coumittee constituted an appointment by the comissfoners court to an enhanced position. 

### -Gvment, or duty within th ’c language of the 

### tvo-yearproviso. It did not state vhether thirl job Change v&s by action of the conmissioners court 

### ore lomt-level admixistrator. Implicitly the opinion Indicates that the change in posttions with the county involved no promotion in status. authority, and responsibilities. We
so 

### construeAttorney General Opinion V-1142 and accordingly find lt not inconsistent with this opittiou.

The exception ‘:I) the nepotism statute 

### for employees vlth tua years of continuous service prior to their relative’s election 

### tothe bosrd does not apply to a long-term school district employee appointed as ichool principal by the board ten months before her husband became aboard member. Under ths: circumstances, the employee paps however, be reinstated to her former, lover-level positico, with the school district.

JIM MATTOX Attorney General 

### ofTexas
TOM GREEN First Assistant 

### AttorneyGeneral

o. 1280

.Mr.RaymonL. Bynum- Page 5 (JM-288)

DAVIDR.RICRARDS Executive Assistant Attorney General

RICLC GILPIN Chairman. 

### OpinionCommittee Prepsred bySusan Garrison Assistant Attorney General
APPROVED: OPINION

COEMITPEE

Rick Gilpln. Chairman Colln Carl Susan Garrison Robert Gray