DAN MORALES

ATTORNEY GENERAL 

# QBffice

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June 29,1992
Mr. Lionel R. Meno Commissioner ofEducation Texas Education Agency 1701North Congress Avenue Austin, Texas 78701-1494 Opinion No. DM-132
Re: Interpretation of the prior continuous employment provision of the nepotism statute, V.T.C.S. article 5996a, section l(b), and related questions (RQ-268)
Dear Commissioner Meno:
You ask a number of questions about the Texas nepotism law, V.T.C.S. article 5996a, which prohibits school district officers and board members from voting for or confirming the employment of certain relatives’ of such officers and board members.
Several ofyour questions relate to a particular set of facts. You describe a situation in which a man had been a school district employee for several years before 1990. In June of 1990he was turned down for two different promotions. In March of 1991 he applied for another promotion, but a different person was selected for the position on March 12, 1991. Based on these three promotion denials, the employee filed three claims with the Equal Employment Opportunity Commission (EEOC) and an internal grievance with the school district. Subsequently, the employee has filed an action against the school district in federal court, alleging that the district illegally discriminated against him by not promoting him to the various promotions he sought. The federal lawsuit supersedes the employee’s EEOC and internal grievance claims. On May 4, 1991, the employee’s mother was elected to the school board.
Your first question is whether the man could have retained a promotion made inJune of 1990in light ofhis mother’s election to the school board in May of

‘Thenepotismstatok spccifkally prohibits school district offkrs and board members from voting for, or contirming the employment of any person related within the second degree by aftimity (marriage) or within the third degree by consanguinity (blood) to any office or board. Article 59!Xh, V.T.C.S., instructs howtocalculate degrees ofaffinity and consanguinity.

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1991. Under section l(b) of article 5996a, an employee related to a school board member may retain hisposition under certain circumstances:

Nothing herein contained, nor in any other nepotism law contained in any charter or ordinance of any municipal corporation of this State, shah prevent the appointment, voting for, or confirmation of any person who shall have been continuously employed in any such office, position, clerkship, employment or duty for the following period prior to the election or appointment, as applicable, ofthe officer or member related to such employee inthe prohibited degree: (1) at least 30days, ifthe officer or member isappointed; (2) at least sixmonths, ifthe officer or member iselected at an election other than the general election for state and county officers; or (3) at least one year, ifthe officer or member is elected at the general election for state and county officers.
In short, an employee may retain aposition he assumed before his relative’s election or appointment aslong asthe employee has served in that position for the length of time required by section l(b). You advise that the mother of the employee in question was elected at an election other than the general election for state and county officers; accordingly, the six-month prior continuous service requirement set forth in section l(b)(2) applies to this, situation. The nepotism law thus would permit the employee to retain aposition he had assumed inJune of 1990.
Your second question iswhether the son could have retained a position he assumed inMarch of 1991. Because the son would not have held such aposition for six months before his mother’s election, the nepotism law would prevent his continued employment in that position.
Your third question is whether the board, with the mother serving as a member, may promote the son to a higher-paid position. Section l(c) of the nepotism lawprovides an answer toyour question:

When aperson is allowed to continue in an office, position, clerkship, employment, or duty because of the operation of

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Subsection (b) of this section, the Judge, Legislator, officer, or member ofthe governing body who isrelated to such person in the prohibited degree shall not participate inthe deliberation or voting upon the appointment, reappointment, employment, confirmation, reemployment, change in status, compensation, or dismissal of such person, if such action applies only to such person and is not taken with respect to a bona fide class or category ofemployees. Thus, the board may appoint the son to ahigher-paid position aslong ashis mother does not participate in the deliberation or voting. See Attorney General Opinion JM-1188 (1990) at 1-2.
Your final question in regard tothis particular set offacts isasfollows: May aTexas school district compromise and settle agrievance, a complaint, or a lawsuit by hiring or promoting, or placing an employee in a position otherwise prohibited by the Texas nepotism statutes? In that regard, can the employee be awarded back pay or compensation as a part of a compromise and settlement when such pay or compensation isprohibited by the Texas nepotism statutes?
We limit our answer tothis question to the facts presented here. Ifthe school board determines in good faith that the employee has a legitimate discrimination claim, the board can decide whether to settle the claim by agreeing to pay back wages. See Attorney General Opinion H-1186 (1978) at 3. Accordingly, ifthe board determines that the employee has a legitimate claim with respect to either of the two promotions for which he applied in June 1990, the board may agree to pay back wages for the period beginning at the time the employee would have taken the promotion to the present. If the board determines that the employee has a legitimate claim with respect to the promotion for which he applied in March 1991, on the other hand, the board may agree to pay back wages only for the period ~beginning at the time the employee would have taken the promotion through the end ofthe pay period after his mother waselected to the school board.? Because of

%e assume that this person isan at willemployee and not acontract employee. Thus, we need not answer any question about the payment ofback wages under a contract entered into before hismother became a trustee. See infix p,7 (answering your seventh question, concerning at will and contract employees).

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the compensatory nature of aback pay settlement, Annot. 21 AL.R. FED. 472, 485 (1974) (awarding back pay under the Equal Employment Opportunities Act), the nepotism statute requires the employee’s mother to abstain from participating inthe deliberation or voting on aback pay settlement. SeeV.T.C.S. art. 5996a, $l(c).
The school board also may agree, as part of a settlement, to promote the employee to either ofthe positions it refused him inJune 1990. Such apromotion would be a prospective promotion. Pursuant to the nepotism statute, the employee’s mother cannot participate in the board’s deliberation and voting on the employee’s promotion. Seeid.
The remaining questions you pose arise from various fact situations, all of which differ from the facts underlying the first four questions. Your fifth question is whether a school board employee may retain his position after he marries arelative of a board member and thereby establishes a relationship within the scope of the nepotism law. The nepotism law applies to relationships that arise during the course of an individual’s employment. Attorney General Opinions V-785 (1949); O-1408 (1939); Letter Opinion No. 89-53 (1989). The nepotism law does allow a governmental body to retain an employee related to a board member if the employee has sufficient prior continuous service. In the case of an individual related to a school board member, the individual must have been employed for six months before the election ofthe related board member. See V.T.C.S. art. 5996a, 8l(b)(2). Significantly, under the nepotism statute, prior continuous service is the time served before the board member’s election, not the time served before the marriage. SeeBean v.State, 691 S.W.2d 773 (Tex. App.--El Paso 1985,writ refd); see also Attorney General Opinion DM-2 (1991) (explaining prior continuous service requirement).
Your sixth question is whether the nepotism statute applies to campus principals since a campus principal exercises discretion over all appointments to his or her campus. Under section 13.352of the Education Code, each public school’s principal shall “approve all teacher and staff appointments for that principal’s campus from apool ofapplicants selected by the district or of applicants who meet the hiring requirements established by the district, based on criteria developed by the principal after informal consultation with the faculty.” Educ. Code 5 13.352(d)(l). This office has construed section 13.352(d)(l) to authorize public school principals to approve all teacher and staff appointments on their campuses. SeeAttorney General Opinion DM-27 (1991).

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You contend that section 13.352(d) of the Education Code “has vested a campus principal with powers ofapublic officer and the nepotism laws apply to the principal and those same laws continue to apply to the board members. [You also contend] that the governing board ofa school district can hire aperson related to a campus principal within a prohibited degree, but the person may not be hired to serve on the campus of the principal who is related to the applicant within the prohibited degree.” In the past, this office has concluded that aperson with arole in the hiring process similar to that ofa campus principal shares joint control over the hiring ofpersonnel and therefore is an officer ofthe state subject to the nepotism law. SeeAttorney General Opinion MW-56 (1979); Letter Advisory No. 156(1978). However, in 1981the Eastland Court ofCivil Appeals expressly overruled Attorney General Opinion MW-56, and we believe the court’s decision overrules as well the reasoning in Letter Advisory No. 156. See Penav.RioGrandeCityConsol.Indep. Sch. Dirt, 616 S.W.2d 658, 660 (Tex. Civ. App.--Eastland 1981, no writ). But c$ Attorney General Opinion JM-91 (1983).
In Pena,the court considered whether the superintendent of an independent school district is an officer ofthe school district subject to the statutory prohibition against official nepotism. Pena, 616 S.W.2d at 658. The court found that under sections 23.26 and 23.28(a) ofthe Texas Education Code the board oftrustees ofan independent school district has the “exclusive right and sole legal authority to appoint or employ teachers,” despite the fact that the superintendent could recommend to the board teachers the board should appoint. Id.~ at 659. The Pena court pointed out, however, that the board need not follow the superintendent’s recommendations; furthermore, even ifthe board consistently follows the superintendent’s recommendations, the board’s exclusive authority cannot be abrogated or limited thereby. Id. Thus, relying on the indicia of public officers articulated in AldineIndependentSchoolDistrict v.Stand&v,280S.W.2d 578 (Tex. 1955),3the Penn

31nAldine, the Supreme Court of Texas considered whether a school district tax assessorcollector that the board of trustees appointed was a public officer. 280 S.W.Zd at 580. The Aldine court stated that indetermining whether aperson isapublic officer, the decisive factor is“‘whether any sovereign function of the government isconferred upon the individual to be exercised by him for the benefit ofthe public largelyindependent of the cor:~ol of otlwrs.“’

Id. at 583(quoting Durrbur v.Broria Counry, 224S.W.2d 738,740 (Tex. Civ.App-Galveston 1949,wit refd)) (emphasis added by supreme coort). The court relied on several indicia ofpublic office to determine that the tax assessor-collector wasnot independent ofthe board’s control, and thus wasnot an officer. Id. at580-85. First, the board oftrustees has the power to appoint itsassessor-collector. Second, the assessor-collector had no futed term ofoffice. Third, no constitutional or statutory provisions provide for the tax assessor-collector’s removal, rather, the board may remove the assessor-collector whenever it wishes (subject to the assessor-collector’s right to appeal to ahigher authority). Fourth, the assessor-collector isnot required to take an oath of oftice. Fifth, the board is authorized to determine the assessor-collector’s p. 684Mr. Lionel R. Meno - Page 6 (DM-132)

court found that the superintendent did not act largely independent ofthe board’s control and therefore wasan agent ofthe board, not apublic officer, for purposes of the nepotism statute. 616S.W.2d at 660.
In our opinion, while each principal has authority toapproveall teachers and staff personnel assigned to the school, he or she lacks authority to hireanyone. The principal-s authority ismore like veto power. Hiring actually isdone by the school board, which retains the power to appoint a pool of applicants, or to establish the hiring criteria. Additionally, despite section 13.352(d)(l)% grant of power to principals, nothing in the Education Code abrogates the school district’s board of trustees’ “exclusive power to manage and govern” public schools in the district, nor does any provision abrogate the board’s power to employ the principal at each campus. Educ. Code $523.26,23.28(a). We believe that the principal is,therefore, not apublic officer for purposes ofthe nepotism statutes. Accordingly, a principal may approve the appointment of a teacher or staff member to the principal’s campus even though the principal and appointee are related within a prohibited degree under the nepotism statute. The school board can prevent nepotism at the school level by refusing to send the principal the application of the principal’s relative.
Your seventh question is whether a school board may delegate to the superintendent the authority to hire and dismiss employees. In Pena,the court held that pursuant to sections 23.26 and 23.28(a) of the Education Code a school district’s board of trustees alone has the right and legal authority to appoint or employ teachers. Pena, 616 S.W.2d at 659. Even though a board may permit the superintendent to recommend appointments ofteachers, the board cannot delegate its authority to hire and dismiss employees. Seeid. Similarly, aboard cannot avoid the burdens ofthe nepotism lawbydelegating to the superintendent the authority to recommend to the school board an applicant the superintendent believes should fill aposition the school board has authorized. See Attorney General Opinions DM-2 at 1;JM-1188 at 2.
As a subpart ofyour seventh question, you ask whether, for purposes ofthe nepotism statute, contract employees differ from at will employees. In numerous opinions and letter advisories, this office has stated that contract employees who lose their positions because of the nepotism law may remain employed for the
(footnote continued) qualitications. Sixth, and tinally, the assessor-collector’s compensarion isf&d by agreement between the board and the appointed assessor-collector. Id.

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remainder of the employee’s contract term, while at will employees may remain employed only for the remainder of the pay period. CompareAttorney General Opinion V-785 at 5 (regarding contract employee) withAttorney General Opinion O-1408 (regarding at will employee); Letter Opinion No. 89-53 (same).

Your eighth question is, in essence, whether the nepotism law applies to independent contractors. We recently answered this question in Attorney General Opinion DM-76 (1992), inwhich we stated that “the nepotism law applies whenever a governmental body hires a natural person, whether as an employee or as an independent contractor.” Attorney General Opinion DM-76 at 2-3. We reaffirm that conclusion here.
SUMMARY

The nepotism statute, V.T.C.S. article 5996a, permits an employee to retain a promotion he received over six months before his mother was elected to the school board oftrustees, if she waselected at an election other than the general election for state and county officers. However, the employee could not retain a promotion he received less than six months before his mother was elected to the school board oftrustees. The school board, with the employee’s mother asa member, could promote the employee to a higher paid position so Iong as the mother does not participate in the deliberation or voting on the promotion.
Aschool district may settle alawsuit byagreeing to payback wages to an employee the district determines would have received a promotion but for the board’s discriminatory treatment, even though the employee’s mother presently sits on the board. The board only may pay back wages for the length of time the employee would have held the promotion; thus, ifhis mother’s election to the board would have resulted in his loss of the promotion, he can receive back wages only for that period of time that he actually would have held the promotion. The mother cannot participate in the board’s deliberations or voting on whether to settle byagreeing topay back wages. A school board employee may retain his or her position after the employee marries a relative of a board member, p. 686Mr.Lionel R.Meno - Page 8 (DM-132)

thereby coming within the scope of the nepotism statute, if the employee was continuously employed for sixmonths before the election ofthe related board member.
The nepotism statute does not apply to campus principals. Thus, aprincipal may approve an applicant within a prohibited degree of consanguinity or affinity to work at the principal’s campus; however, the board may not employ aperson related to any board member within a prohibited degree of consanguinity or affinity. The nepotism law applies to independent contractors aswell asemployees. Very truly yours,

DAN MORALES Attorney General ofTexas
WILL PRYOR First Assistant Attorney General
MARY KELLER Deputy Assistant Attorney General
RENEA HICKS Special Assistant Attorney General
MADELEINE B.JOHNSON Chair, Opinion Committee Prepared byKymberly K.Oltrogge Assistant Attorney General

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