ATTORNEY GENERAL OF TEXAS GREG ABBOTT

January 17, 2008

The Honorable Eddie Lucio, Jr. Chair, Committee on International Relations and Trade Texas State Senate Post Office Box 12068 Austin, Texas 78711
Dear Senator Lucio: Opinion No. GA-0595 Re: Applicability of the nepotism statutes, Government Code chapter 573, to an individual employed by the City ofPharr (RQ-0608-GA)

You ask several questions about applying the nepotism statutes, Government Code chapter 573, to the City ofPharr's employment ofa particular individual.! Your questions arise from the following fact situation, as relayed to you by the city's mayor: [A] member of the city's governing board of commISSIoners recommended to the city manager that a particular woman be hired for a city job. The woman was not at that time married to the commissioner's son, but before being hired by the city gave birth to the child ofthe commissioner's son. A city department head and the city manager subsequently hired the woman as a clerk and, after the employmentbegan, the woman andthe commissioner's sonmarried. RequestLetter, supra note 1, at 1; see also Ryan Holeywell, Questions of nepotism raisedin Pharr, THEMONITOR (Aug. 16,2007), available athttp://www.themonitor.com (lastvisitedJan. 8,2008). You specifically ask: (1) Did the birth ofa child whose father is the son ofa city commissioner create a relationship by affinity between the commissioner and the child's mother such that employment ofthe mother by the city violates Chapter 573, Government Code?

lSee Letter from Honorable Eddie Lucio, Jr., Chair, Committee on International Relations and Trade, Texas State Senate, to Honorable GregAbbott, Attorney General ofTexas (July 18,2007) (on file withthe OpinionCommittee, also available athttp://www.oag.state.tx.us) [hereinafter Request Letter].The Honorable Eddie Lucio, Jr.

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(2) If a relationship subject to Chapter 573, Government Code, existed between the commissioner and the woman, did the city's initial decision to employ the woman, which was not made by the board ofcommissioners, violate Chapter 573? (3) Does the subsequent marriage of the woman to the commissioner's sonprohibitthe continued employmentof thewoman by the city? (4) Does the continuous employment exception to the nepotism laws apply if a relationship by affinity is created after· a public official takes office? Request Letter, supra note 1, at 2-3. Chapter 573 of the Government Code generally prohibits nepotism by public officials, including municipal officers. See TEX. GOV'T CODE ANN. §§ 573.001(3), .041 (Vernon 2004). Under section 573.041, a "public official may not appoint, confirm the appointment of, or vote" to appoint or confirm the appointment ofan individual to aposition that is "compensated from public funds" if"the individual is related to the public official within" the third degree by consanguinity or within the second degree by affinity. Id. § 573.041(1); see ide § 573.002 (setting out the degrees ofrelationship to which chapter 573 applies). Consanguinity refers to relationships by blood, including adoption, and is calculated by counting the number ofgenerations that separate two individuals. See ide §§ 573.022, .023(a). Affinity refers to relationships by marriage and is generally calculated by determining the degree ofthe underlying consanguine relationship. See ide §§ 573.024(a), .025(a). All of the issues you raise can be resolved by answering your second question: Even assuming thatarelationship by affinityexistedbetweenthe commissionerandthe woman appointed , by the city manager, does chapter 573 apply to her employment and retention by the City ofPharr? See Request Letter, supra note 1, at 2. Under a 1981 decision ofthe court ofcivil appeals, Pena V. Rio Grande City Consolidated Independent School District, the nepotism statute applies to officers who have the "exclusive right and sole legal authority to appoint or employ" personnel underthe statute. Pena V. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658,659-60 (Tex. Civ. App.-Eastland.1981, no writ). An officerwith statutory authority to appoint or employ personnel does not avoid the application ofthe nepotism statutebydelegating authorityto anofficerwithout such statutory authority. See ide at660. CitingPena andattorneygeneral opinionspremiseduponPena, this office statedin2004that a home-rule municipality's governing board avoided the application ofsection 573.041 to board members' relatives ifthe board had, by charter, delegated "full and final appointing authority" and had not "reserve[d] any authorityto the governing body." Tex. Att'y Gen. Opt No. GA-0226 (2004) at 3. Thus, for example, the nepotism statutes didnot apply to a citymanager's hiring ofindividualsThe Honorable Eddie Lucio, Jr.

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related to city commissioners where the home-rule municipality's charter delegated to the city manager sole powerto appoint and remove all officers and employees inthe administrative service ofthe city (with the exception ofthe city attorney) and expressly prohibited the city commission from taking any part in the appointments. See 

### id.; see also Tex. Att'y Gen. Ope No. 0-5274 (1943) at 1-3, 10. The City ofPharr is a home-rule municipality. See TEXAS ALMANAC (2006-2007) at 453, 461; TEXAS MUNICIPAL LEAGUE, TEXAS CITY OFFICIALS DIRECTORY AND BUYER'S GUIDE (2005-2006) at 100. Accordingto yourletter, the citycharterdeems the citymanagerto bethe city's "chiefadministrative and executive officer" and provides the city managerwith exclusive powerto appoint city employees below the department-head level: [The citymanager] shall appoint, subjectto consultationwith the Board ofCommissioners, all departmentheads, and without such consultationall Cityemployees andappointive administrative officers provided for by or underthis Charter, except as otherwise provided by law, this Charter or personnel rules adopted pursuant to this charter

.... 2 RequestLetter, supranote 1, at 1 (quoting PharrCity Charterart. IV, 

### § 1(a), (b)(2)) (footnote added). As you describe it, "the Pharrcitychartergrants the citymanagerthe authorityto hire cityemployees below the level of department head without the approval or involvement of the board of commissioners." Request Letter, supra note 1, at 3. You further explain that, under the City of Pharr's charter, the board ofcommissioners does not appoint, confirm, orvote to appointorconfirm any employees otherthan departmentheads. See 

### ide Becausethis office ordinarily does notconstrue city charters, this opinion is premised on your characterization ofit. See Tex. Att'y Gen. Ope No. GA-0529 (2007) at 1. The city manager hired the woman about whom you ask to fill a clerk's position, and your letter indicates that the clerk's position is not a department head's position. See Request Letter, supra note 1, at 1, 3. Consequently, the city charter, as you describe it, required the city managerto appoint the clerk without the board ofcommissioners' approval or involvement. 3 See 

### ide at 3. Whether in fact the city charter delegates to the city manager "full and final appointing authority" and does not "reserve any authority to the governing body" is generally a question for the appropriate municipal officials to answer. Tex. Att'y Gen. Op.No. GA-0226 (2004) at 3. In these circumstances, however, and assuming that you accurately characterize the City ofPharr's charter,

2We assume that no other provision ofthe city charter or any city personnel rules abrogate the city manager's appointing authority under article IV, section 1(b)(2) ofthe Pharr City Charter. JYour letter suggests that "[a] city department head and the city manager" hired the woman. Request Letter, supra note 1, at 1. The department head's role in the hiring is irrelevant to the nepotism analysis, assuming that the department head exercises no delegated authority in the hiring process under the city charter.The Honorable Eddie Lucio, Jr.

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chapter 573 does not apply to the city manager's hiring ofan individual who is related to a city commissioner to a position below the department-head leve1.4
Becausethis conclusionresolves the situation, we neednotansweryourremaining questions.

4We assume for purposes ofthis opinion that the commissioner's daughter-in-law is not related to the city manager within the third degree by consanguinity or within the second degree by affmity. See TEX. GOV'T CODE ANN. § 573.002 (Vernon 2004).The Honorable Eddie Lucio, Jr.

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### SUMMARY The charter ofthe City ofPharr, a home-rule municipality, delegates to the city manager the power to appoint individuals to positions below the department-head level without consulting the municipal governing board. Ifthe charterprovides the city manager withfull and final appointing authority to appointindividuals to such positions and reserves no authority for the city's governing body in these appointments, the city managermay appoint an individual who is related to a city commissioner, but who is not related to the city manager, without contravening the nepotism statutes, Government Code chapter 573. Very truly yours,

KENT C. SULLIVAN First Assistant Attorney General ANDREW WEBER Deputy Attorney General·for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee