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September 20,199l

Mr. Dermis R.Jones Commissioner Texas Department ofMental Health and Mental Retardation P.O. Box 12668 Austin Texas 78711-2668 Opinion No. DM-46
Re: Whether the Texas nepotism law, article 5996a,V.T.C.S.,isviolated when the superintendent of a Texas Departem of Mental Health and Mental. Retardation school awards a merit salary to his spouse, who is employed at the same facility (RQ-110)
Dear Mr.Jones:
You ask whether the Texas nepotism law, article 5996a, V.T.C.S.,isviolated when the superintendent of a Texas Department of Mental Health and Mental Retardation (MHMR hereinafter) school awards a merit salary ‘increase to his spouse, who is employed at the same facility. You inform us of the following facts relevant toyour question:

Recently, this facility received accreditation from a nationally recognized body due inlarge part to the efforts ofthe employees ofthe school.
In order to recognize those employees who performed exceptionally well, the superintendent established a committee to evaluate performance and recommend to him persons to receive merit salary increases: The superintendent was not a member ofthe committee and had no part in deciding to whom the merit salary increases would be awarded. The superintendent’s spouse wasrecommended for and received a merit salary increase.
We conclude that the nepotism statute has been violated inthis situation.

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The superintendent of a facility ofthe Texas Department of Mental Health and Mental Retardation is an officer within the meaning of the Texas nepotism statute and may not employ a person who is related to him within the degree of kinship prohibited by article 59%a, V.T.C.S. Attorney General Opinion JM-91 (1983). There are exceptions to certain aspects ofthe nepotism lawfor persons who have been continuously employed prior to the election or appointment ofthe state officer who is related to the employee. V.T.C.S. art. 59,96a,5 l(b), (c); Attorney General Gpinion DM-2 (1991). Because we are informed that the superintendent’s spouse was employed at the facility at least 30 days before the superintendent was appointed, the employment of the superintendent’s spouse in the same facility is not a violation of section l(a) of the nepotism statute. See V.T.C.S, art. 5996a, 0 l(b)(l); Attorney General Gpinions DM-2 (1991); JM-1188 (1990); see also Attorney General Opinion JM-636 (1987) (period ofcontinuous service must be at a time when the employee’s relative is not an officer with the power to hire and fire the employee). To answer your question, we must turn to section l(c) of article 5996a.
Subsection (c) of section 1 of article 5996a describes permissible situations when an employer may participate in future employment decisions about a relative whois allowed to continue workingpursuant to subsection (b):

When a person is allowed to continue in an office, position, clerkship, employment, or duty because of [sufficient prior continuous service,]

. . .the

. . .officer.

. .who isrelated to such person in the prohibited degree shall notparticipate in the deliberation or voting upon the appointment, reappointment, employment, confirmation, reemployment, change in status, compensation, or dismissal of such person ifsuch action applies on& to suchperson and is not taken with respect to a bonafide clars orcategoryofemployees. (Emphasis added.)
We 6nd that the superintendent must be deemed as a matter of law to have participated in the deliberation of the compensation of his spouse. This ,determination isbased on the fact that the superintendent is statutorily empowered to fix the salaries of his employees. V.T.C.S. art. 3176. The applicability of the nepotism statute turns on whether the superintendent may exercise control of employment decisions. SeePena v.Rio Grade Ci&ConrOr Indep. School Dirt., 616 S.W.2d 658 (Tex. Civ. App.-Bastland 1981,no writ); Attorney General Opinions JM-1188 (1990); JM-581(1986). The superintendent can not avoid participation in

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matters regarding compensation by establishing a committee to recommend employees who deserve a salary increase, because the committee’s recommendation can not abrogate or limit the superintendent’s exclusiveauthority granted by statute. Hence, the superintendent’s statutory authority to determine the salaries of facility employees is the legal equivalent of participation in the compensation of those employees within the meaning ofsection l(c) ofarticle 5996a.
We next consider whether the superintendent’s’ participation in the compensation of his spouse applied only to his spouse and was not taken with respect to a bona fide class or category of employees. An officeholder may participate in decisions about the compensation of his relative without violating section l(c) ofthe nepotism statute ifthe compensation is provided to at least one other employee and givenwith respect to abona fide class or category ofemployees. See, e.g.,Attorney General opinion MW-135 (1980). We are informed that the spouse is one of four state school employees who were awarded a merit salary increase in recognition of their contribution to the accreditation effort. Thus, we consider whether the superintendent’s award ofamerit salary increase to employees who “performed exceptionally well” in the accreditation effort is an “action taken with respect to abona fide classor category ofemployees.” The question ofwhat constitutes an action taken ‘withrespect to a bona fide class or category of employees” was considered in Attorney General Opinion JM1188,which determined that-a sheriff could not promote his son and daughter even though they had sufficient prior continuous service to retain theirjobs in the sheriffs office after their father became sheriff. (The son waspromoted from deputy sheriff to sergeant, and the daughter was promoted from jailer to deputy sheriff.) That opinion states, “We do not think that the language regarding actions taken with respect to a bona fide category of employees was intended to give an offkeholder’s relatives the benefit ofexpectations created by custom or common practice.” Thus, we see that custom or common practice cannot be the basis for deciding whether the merit salary increase wastaken with respect to abona fide category ofemployees. The Committee on State Affairs bill analysis of Senate Bill 599 (committee substitute), the 1985bill that added section l(c) ofarticle 5996a, states that the bill addresses the problem that an employer (who falls within an exception to the nepotism statute under section (b) and (c) because of continuous prior service) “is not precluded from participating in future employment decisions concerning his relative, such aspromotions and raises.” In other words,with the addition ofsection l(c) to the nepotism statute, when an employee of a relative continues his

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employment because ofsufkient prior service, he need not be denied a promotion or raise ifhe is a member of a bona fide class or category to which such promotion or raise applies. The bill analysis gives one example of a decision appling to a bona fide class or category ofemployees - “anacross-the-board rak for all employees.” An award isgranted to only a select fewemployees. The question for consideration becomes what standard isused in the officeholder’s action with respect to the bona fide class or category whichreceived the award.
We think that “action taken with respect to a bona fide category of employees” means that an officeholder’s action must be based on objective criteria, which do not allow for the preference or discretion ofthe officeholder. An example of such an -action would be a decision to give a cost-of-living increase to all employees, Attorney General Opinion JM-1188 (1990), or an automatic salary increase or promotion based, for example, onyears ofservice or level ofeducation. We are now concerned with a salary increase awarded for “those who performed exceptionaLlywell”after a MHMR school received national accreditation. Thus, in this case, the performance of an employee, as evaluated by the officeholder, determines his inclusion in the category ofemployees who received an award. We must determine whether the evaluation of the employees who became award recipients involved the subjectivity ofthe officeholder. Any decision to give a salary increase based on a performance evaluation contains an element of subjectivity. We find that because the decision to give a merit salary increase to recognize those who performed exceptionally well in the accreditation effort involved an evaluation ofthe employees’ performance, aprocess which can never have all subjective factors eliminated, it was not “action taken with respect to a bona fide class or category of employees.” As determined above, the superintendent “participated” in this evaluation; consequently, in spite of the fact that the recipients of that award were determined by a committee of which the superintendent was not a member, the superintendent is in violation of section l(c) ofthe nepotism statute. SUMMARY

The nepotism law, article 5996a, V.T.C.S., is violated when the superintendent of a Texas Department of Mental Health Mental Retardation school awards a merit salary increase to his spouse, who isemployed at the same facility.

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DAN MORALES Attorney General ofTexas

‘WILLPRYOR First Assistant Attorney General
MARY KELLER Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.) Special Assistant Attorney General RENEAHIcK!j Special Assistant Attorney General
MADELEINE B.JOHNSON

~. Chair, Opinion Committee Prepared by Kay H. Guajardo Assistant Attorney Generai

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