Untitled Texas Attorney General Opinion ( 1984 )

The Attorrwy General of Texas
JIM MATTOX
E’ovember 16, 1984
Attorney General
Supreme Court Building Mr. Raymon L. Bynum Opinion No. ``234
P. 0. BOX 12548 Conm&3&oner of Educ,ation
Auslin. TX. 70711. 2548 Texas Education Agmcy Be: Whether article 5996a.
51214752501 201 E. Eleventh Street V.T.C.S., the nepotism law. is
Telex 9101874.1387
Telecooier 512/4750268
Austin, Texas 78X1 applicable to the special career
ladder committees created by
House Bill No. 72
714 Jackson. Suite 700
Dallas. TX. 75202-1506
Dear Commissioner Ilynum:
2141742.8944
You ask whether the nepotism law applies to the selection of
4824 Alberla Ave.. Suite 180 teachers for level two, three, and four of the career ladder
El Paso. TX. 799052793 established by House Bill No. 72 of the Sixty-eighth Legislature,
91515353484
Second Called Session. Acts 1984, 68th Leg., 2nd C.S., ch. 28, at
269. Article 5996a,, V.T.C.S.. the nepotism statute, provides in part:
.dOl Texas. Suite 700
HOUSTON, TX. 77002.3111 No officer of this State nor any officer of any
7lY223.5888 district, county, city 9 precinct, school
district . . . shall appoint, or vote for, or
806 Broadway. Suite 312
confirm the appointment to any office, position,
Lubbock. TX. 79401.3479 clerkship-, employment or duty. of any person
8W747.5238 related within the second degree by affinity or
within th#e third degree by consanguinity to the
person so appointing or so voting, or to any other
4309 N. Tenth. Suite S
McAllen. TX. 78501.1605
member c,f any such board, the Legislature, or
5121682.4547 court of which such person so appointing or voting
may be a member, when the salary, fees, or
compensal:?:on of such appointee is to be paid for,
200 Win Plaza. Suite 401)
directly or indirectly, out of or from public
San Antonio. TX. 78205.2797
51212254191
funds. . . . [Exception for appointment of person
continuously employed in any office, position,
clerkship,. employment or duty for two years prior
An Equal Opporlwityl to elect:lon of relative.] (Emphasis added).
Al,irms,i”e Action Emplova-
This statute will apply only if the assignment of teachers to a
particular career ladder level constitutes appointment to “any office,
position, clerkshi],, employment or duty. . . .”
Section 13.301 of the Education Code provides that each teacher
shall be assigned to a career ladder level based on performance,
experience, academic work, and job assignments. See Acts 1984, supra,
p. 1050
Mr. Baymon L. Bynum - Page 2 (Jn-234)
at 354. A teacher on level two. three, or four of a career ladder is
entitled to the following annual supplement in addition to the minimum
salary set under chapter 16. subchapter B of the Education Code:
Level 2 . . . . . ii2.000
Level 3 . . . . . ,$i ,000
Lwel 4 . . . . . ,$i.OOO
Educ. Code 516.057(a) (added by Acts 1984, supra, at 314). But see
Educ . Code 516.057(c)(l) (added by Acts 1984. supra, am
(reduction of supplements 1:: allotment under 416.158 will not fully
fund them). Entry to level two, three, or four of the career ladder
requires possession of a ta;rching certificate which corresponds to
that level, a stated combing.tion of education and teaching experience
at the prior level, and job performance that meets statutory
standards. Educ. Code 5§13.308-13.310 (added by Acts 1984, supra. at
360); see Educ. Code 513.304 (added by Acts 1984, eupra, at 356)
(standatds for appraising :,ob performance). The State Board of
Education is to adopt a pr>N:ess and criteria to be used by school
districts in appraising a 1:eacher’s performance for career ladder
assignment. At least two persons will appraise a teacher’s
performance -- his supenrisoc and another person approved by the board
of trustees. Educ. Code 0013.302; 13.303 (added by Acts 1984, supra,
at 354). A school district decision is final and subject to appeal
only if the decision was ;brbitrary and capricious or made in bad
faith. Educ. Code 113.319 (aided by Acts 1984. supra, at 364).
A special provision 8rrern.s assignment of teachers to career
ladder levels in the 1984-L!)85 school year. Educ. Code 513.301(a)
note (added by Acts 1984, suera, at 365). For that year, each teacher
is to be assigned to level%hor level two on the career ladder. Id.
A teacher may be assigned to level two if he has the years of
experience and education required to enter that level:
The determination of a teacher’s eligibility to
enter level two under this subsection will be made
by a committee or committees appointed by the
school district. Each committee shall include one
principal, one person from central administration
who has direct responsibility for personnel, and
one other admirkstrator. This three-member
committee shall designate two teachers as level
two teachers who chall then become members of the
committee for purpclses of review of all remaining
teachers. The committee shall consider a
teacher’s past pe,rformance as a criterion for
placement on level two.
p. 1051
Mr. Rapon L. Bynum - Page 1) (m-234)
You ask whether article 5996a. V.T.C.S., the nepotism statute,
applies to the selection 01’ level two, three, and four teachers. As
we have pointed out, this statute applies to appointment to “any
office, position, clerkship, employment or duty. . . .(( V.T.C.S. art.
5996a.
Assignment to a hig’her career ladder level results in an
increased salary for the teacher, but it does not constitute a
promotion or change of jcjb duties. A move up the career ladder
recognizes a teacher’s a.ccomplishments in education, teaching
experience, and job performance by giving him a status which is
transferable to another school district. Educ. Code 113.321 (added by
Acts 1984. m, at 364) (teacher is entitled to transfer career
ladder level between districts unless he waives entitlement). A
teacher’s place on the ,career ladder exists independently of
assignment to particular tl?aching duties, as shown by section 13.313
of the Education Code (added by Acts 1984, *, at 362).
Sec. 13.313. ‘REASSIGNMENT OF DUTIES. If a
school district reassigns a teacher to another
grade level or another subject over the objections
of the teacher, t,h,e teacher may not be reassigned
to a lower careeLf’ ladder level on the basis of
performance appraisals during the first three
years in which the teacher teaches the new grade
level or subject.
A change in career ladder :Level is thus not equivalent to a change in
teaching duties. A particular career ladder level is not an office,
position, clerkship, or duty within article 5996a. V.T.C.S. The
nepotism statute therefore does not apply to the selection of level
two, three, and four teachers.
Letter Advisory No. 68 (1973) concluded that article 5996a.
V.T.C.S., prohibited a schcol teacher whose husband was a school board
member from receiving a salary increase over the regular increment
provided by law. It relied on Attorney General Opinion M-671 (1970).
which discussed the exceptd,on for a relative “continuously employed in
any office, position, clerkship, employment or duty for a period of
(2) years prior to the elec,tion or ‘appointment’ of the board member.”
This opinion stated as foll,ovs:
It is our opir~ion that the Legislature intended
by the underscorc!d language of the Article. supra.
only that a per:%on would not lose his job if a
relative were el#ected to an office within the
Article’s purview. We cannot conclude that the
Legislature, in view of the spirit of the other
provisions of the Article, intended that a
I4r. Raymon L. Bynum - Page 1, (JM-234)
relative of such an office holder could be
promoted to a L``sition whereby his financial
remuneration woulc[be enhanced. (Emphasis added).
Letter Advisory No. 68 went one step further in concluding that
article 5996a applied to a salary increase without promotion to a new
position. But see Attorney General Opinion MU-135 (1980) (article
5996a. V.T.C.S., does not bar clerical aide from receiving raise given
all persons doing similar work). We believe Letter Advisory No. 68
departed from the language of article 5996a. V.T.C.S.. in concluding
that the statute applied to salary increases. A salary increase is
not "an office, position, clerkship, employment or duty." Attorney
General Opinion M-671 addrcfssed a promotion to a new position at an
increased salary, not an increased salary alone.
Other rulings issued hy this office adhere closely to the
statutory language. Letter Advisory 69 (1973) stated that "the plain
and unambiguous language of the exception makes it apply only to the
'office, position, clerkshi:?, employment or duty' in which the person
shall have been cont1nuousl.y employed. . . ." Therefore, the school
board could not appoint to a new. less remunerative position a
trustee's relative who had 1:ept his job under the exception in article
5996a. V.T.C.S. See also Attorney General Opinion MW-135 (1980)
(article 5996a. V.T.C.S., prevents assignment of teacher to additional
duty of preparing curriculrm guides during sunrmer). Letter Advisory
No. 68 gives article 5996a. V.T.C.S., an interpretation not supported
by the words of the statute and is therefore overruled.
Article 5996d. V.T.C.S :) provides that
[n]o officer or other person included within the
third preceding article [5996a] shall approve any
account or draw or authorize the drawing of any
warrant or orde:: to pay any salary, fee or
compensation of such ineligible officer or person,
knowing him to be so ineligible.
This provision applies to persons who have been employed in violation
of article 5996a. V.T.C.S. Attorney General Opinions O-1031, O-361
(1939). See also Attorney General Opinion M-857 (1971). There is no
violation of article 5996a, V.T.C.S., when a teacher is assigned 2
career ladder level. Article 5996d. V.T.C.S., is therefore
inapplicable and does no': bar the trustees from approving the
teacher's salary payments. The nepotism law does not apply to the
assignment of teachers to level two, three, and four of the career
ladder under chapter 13, subchapter E, of the Texas Education Code.
p. 1053
L
Mr. Raymon L. Bynum - Page 5 (JM-234)
SUMMARY
Articles 5996a snd 5996d. V.T.C.S., concerning
‘ nepotism, do not apply to the selection of level
two, three, and fmr teachers pursuant to chapter
13, subchapter E c'f the Texas Education Code added
by House Bill No. 72 of the Sixty-eighth
Legislature, Second Called Session. Letter
Advisory No. 68 (1973) is overruled.
JIjph
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attoraey General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
p. 1054