February 24, 1987

Honorable HughParmer Chairman Intergovernmental Relations Committee Texas State Senate P. 0. Box 12068 Austin, Texas 78711 Opinion No. JM-636

ue: Whether anindividual mayavoid application of the nepotism law to a relative by resigning from a position onthe board of trustees of a school district and subsequently standing for re-election
Dear Senator Parmer:
You inquire about the application of the nepotism law, article 5996a. V.T.C.S., to a particular case involving a teacher who is related to a school board member. An independent school district hired a teacher in August of 1985. The school board approved the teacher’s rehiring in March of 1986. In April, 1986. the teacher’s mother was elected to the school board. Amother and daughter are related within the first degree of consanguinity, Letter Advisory Nos. 115 (1975); 67 (1973), a relattonship covered by the following prohibition of thenepotism act:

Noofficer of this State

. . .nor anyofficer or member of any State district, county, city, school district or other municipal board

. . . shall appoint, or vote for, or confirm the appointment to any office, position, clerkship, employment or duty, of any person related within the second degree by affinity or within the third degree by consanguinity to the person so appointing or sovoting, or toanyother memberof any such board

. . . when the salary, fees, or compensation of such appointee is tobe paid for, directly or indirectly. out of or from public funds or fees of office of any kind or character whatsoever.

. . . V.T.C.S. art. 5996a. Theteacher hadnot completed ayear of service prior to the time her mother joined the board. Thus, she did not qualify for the exemption proviso set out inthe nepotism law:

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[Plrovlded, that nothing herein contained. nor in anyother nepotism lawcontained in anycharter or ordinance of any municipal corporation of this State, shall prevent the appointment. voting for, or confirmation of anyperson whoshall have been continuously employed In any such office, position, clerkship, employment or duty for a period of one (1) year prior to the election or appointment of the officer or member appointing, voting for, or confirming the appointment, or to the election or appointment of the officer or memberrelated to such employee in the prohibited degree.
V.T.C.S. art. 5996a. The school board onwhich the teacher’s mother served could not renew the daughter’s teaching contract, but the teacher would be allowed to serve out her present contract. See,
-, Attorney General Opinions MU-286 (1980); M-862 (1971); Letter Advisory No. 70(1973).
Youaskwhether the school board membermayresign in February of 1987 and file to run again in the April 4, 1987 election so that her daughter might continue to hold her job as teacher. The teacher’s contract would presumably be renewed during the time her mother was not onthe board.
Asapreliminary matter, wewill point out that theboard member will continue to serve in aholdover capacity after her resignation until she is replaced byasuccessor. Article XVI, section 17. of the Texas Constitution provides as follows:

All officers within this State shall continue toperform the duties of their offices until their successors shall beduly qualified.
Anofficer’s resignation creates alegal vacancy which can be filled in the manner provided by law. See Attorney General Opinion M-659 (1970). The officer, however, continues to serve and to have the duties andpowers of office until asuccessor is qualified. Jones v. City of Jefferson, 1S.W. 903 (Tex. 1886); Pyote Independent School District v. Estes. 390S.W.Zd 3(Tex. Civ. App. - El Paso 1965, writ ref ’d n.r.e.). Thus, until the legal vacancy created by the school trustee’s resignation is filled by a successor, she will remain a member of the school board, and the board will be barred from reappointing the trustee’s daughter as ateacher. Assuming that the trustee resigns from the board and is replaced byasuccessor. wemust consider whether her daughter maybehired for another school year inMarchof 1987.

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Webelieve the school board mayreappoint the teacher In this case, if her mother has resigned from the board andhas been replaced by a qualified successor. If no board member is related to the teacher in aprohibited degree, the plain language of article 5996a. V.T.C.S., would not bar her reappointment. We caution, however, against the practice of trading. V.T.C.S. art. 5996c.
Your request letter also suggests that the teacher will be exempted from the nepotism act if her mothe.r is again elected to the school board. You reason that her year of service prior to her mother’s resumption of office inApril, 1987, will constitute oneyear of prior continuous service within the exemption provision. Wewill next address this issue.
Wemay look to the emergency clause of the bill in order to ascertain the legislative intent underlying the one-year requirement. Pophamv. Patterson, 51 S.W.2d 680 (Tex. 1932); see also Attorney General Opinion V-1142 (1951). A 1949 amendment to the nepotism law added the exemption provision. Acts 1949, 51st Leg., ch. 126. at 227. The original exemption provision exempted persons who had been

“continuously employed

. . . for aperiod of two (2) years prior to the election or appointment of the officer” related to the employee within a prohibited degree. Id. Il. Article 5996a, V.T.C.S., has been amended twice since 1949.?ee Acts 1951, 52ndLeg., ch. 97, at 159; Acts 1985, 69th Leg., chT152, at 683. The most recent amendment, adopted in 1985. reduced the required period of prior service from twoyears to one year and madeother changes affecting the employment of persons whoare exempted by the oneyear provision. Acts 1985, 69th Leg.. ch. 152, 91, at 683. Theamendments subsequent to 1949have not, however, changed the requirement that the employee have been continuously employed “prior” to his relative’s assumption of office. Thus, wemaystill look to the emergency clause of the 1949amendmentfor someindication of legislative intent. Theemergency clause states inpart:

The fact that numerous employees of the State and Its agencies and subdivisions whose services are valuable to the State are required to give up such employment because members of their f,amily maybe, from time to time, elected to offices in this State under whomsuch employees hold their employment, and the fact that persons who have continuously served the State prior to the election to some office of arelative should not be discharged for that reason alone, andthe fact that the purpose of the nepotism lawwas not to oust such persons from legitimate employment by the State, create anemergency.
. . .

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Acts 1949, 51st Leg., ch. 126, 13. at 227. This clause recognizes the value of a public employee's services, particularly au employee who has served continuously for adesignated period of time. The length of service provides a measure of the employee's value, in that it signifies somedegree ofjob loyalty andjob experience. The one year mayalso provide an opportunity for disinterested evaluation of the employee. Once the employee's relative becomes a board member, the other board mem@ersmayhesitate to fire himbecause of his relationship to their fellow board member. A supervisor, answerable to the board, may be reluctant to give a negative evaluation to anemployee related to aboard member. During the one year of prior service, however. the employee mayprove his merit, and the board may evaluate him. without being subject to such indirect influences as an actual nepotism relationship might cause. Cf. New -- Mexico State Board of Education v. Board of Education, 624 P.2d 530 (N.M. 1981) (competency of tenured teacher was established years before family memberwaselected toschool board). Thelegislature has decided to distinguish between employees who have completed one year of prior continuous service before their relative takes office and employees with less than one year of service. See, e.g., Bean v. State, 691 S.W.Zd 773 (Tex. App. - El Paso 1985. writ ref'd): Attorney General Oninion Nos. JP-371 (1985): MW-23 (1979); M-862 (1971). Wecannot disregard the distinction which the legislature has enacted. Webelieve the legislature intended that public employees have a year of prior service free of a nepotism relationship. See, e.g., Attorney General Opinion M-862 (1971) (period of prior service starts when employee begins work, not whenhe signs contract). Therefore, ff the trustee in this case severs her connection with the school board inFebruary of 1987andrejoins the board inApril of 1987, her daughter will not have completed the one year of continuous service prior to the time her relative took office. Only if the trustee remains off the board for afull year will her daughter have anopportunity tocomplete the required year of prior service.
SUMMARY The exemption provision of the nepotism law, article 5996a, V.T.C.S., requires the employee to complete oneyear of continuous service at atime that the employee's relative is not an officer with power tohire andfire the employee. Where a school trustee leaves office for two months and then resumes office, the trustee's relative has not completed one year of continuous

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service prior to the time her relative takes office. Only if the trustee remains off the board for afull year till her daughter have anopportunity to complete the required year of prior service

Attorney General ofTexas
JACKHIGHTOWER First Assistant Attorney General
MARYKELLER Executive Assistant Attorney General
RICKGILPIN Chairman, Opinion Committee Prepared bySusanL. Garrison Assistant Attorney General

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