Untitled Texas Attorney General Opinion ( 2000 )

March 9,200O
The Honorable Laura Garza Jimenez Opinion No. K-0193
Nueces County Attorney
901 Leopard, Room 207 Re: Whether section 573.062(b) of the Govem-
Corpus Christi, Texas 78401-3680 ment Code requires a sole officeholder to refrain
tiom finally approving reassignments of close
relatives who have been continuously employed in
his department for the period of time specified in
section 573.062(a) (RQ-0123-JC)
Dear Ms. Jimenez:
In general, an individual who is related to a public official may not be employed in a position
that the public official may appoint. See TEX. GOV’T CODE ANN. 5 573.041 (Vernon 1994).
Nevertheless, an employee whose close relative is elected or appointed to office may retain the
employment if, prior to the relative’s election or appointment, the employee has been continuously
employed in the position for a certain period oftime. See id. 5 573.062(a). The public official may
not deliberate or vote on “the appointment, reappointment, confirmation of the appointment or
reappointment, employment, reemployment, change in status, compensation, or dismissal of’ such
a continuously employed relative, however, unless the action applies to “a bona fide class or
category of employees.” Id. 5 573.062(b). Thus, a public official may take only an action with
respect to his or her relative that is “based on objective criteria” and may not take any such action
that allows “for the preference or discretion of the officeholder.” Tex. Att’y Gen. Op. No. DM-46
(1991) at 4.
You ask whether section 573.062(b) of the Government Code requires fhe Chief of Police
for the City of Corpus Christi (fhe “Chief ‘) to decline to finally approve particular interdepartmental
transfers involving his son and nephew. See Letter from Honorable Laura Garza Jimenez, Nueces
County Attorney, to Beverly McGaffey, Office of the Attorney General (Oct. 8, 1999) (on file with
Opinion Committee) [hereinafter “Jimenez Letter”]; Letter from Honorable Carl E. Lewis, Nueces
County Attorney, to Honorable John Comyn, Attorney General (July 23,1999) (on file with Opinion
Committee) [hereinafter “Lewis Letter”]. We conclude that section 573.062(b) of the Government
Code prohibits the Chiefs final approval if the approval requires an exercise of the Chiefs
discretion.
The Honorable Laura Garza Jimenez - Page 2 (X-0193)
Your predecessor detailed the situation:
The Chief of Police for the City of Corpus Christi has a son
and a nephew who are both employed as Senior Officers with the
department. The employment of both the son and the nephew with
the department preceded by several years the appointment of their
relative to the chief position. Likewise, each had achieved his rank
prior to the chiefs appointment.
Years after the chiefs appointment, the son and nephew were
transferred. The son was transferred f?om the Uniform Division to
the Organized Crime Unit. The son received no salary increase and
no change in rank, but this transfer significantly altered his regular
duties and required him to wear plain clothes instead of the
department uniform. As a result of the transfer, he received a
standard clothing allowance, and he was required to drive an
unmarked department vehicle which he kept at all times and which
could be used only for official duty.
The nephew was transferred from the Uniform Division to the
Criminal Investigation Division. The conditions of his transfer were
very similar to those of the son: no salary increase; no change in rank;
substantial change in duties; plain clothes instead of a uniform;
clothing allowance and use of an unmarked department vehicle.
Pursuant to Chapters 143 and 174, Local Government Code,
the City and the Corpus Christi Police Officers Association have
entered a collective bargaining agreement. . [which] gives the chief
exclusive authority to approve finally all transfers. After the moves
were recommended to him by the supervisors of the respective
divisions, the transfers of both the son and the nephew were finally
approved by the chief.
Lewis Letter, supra, at 1.
A public official may not appoint an individual to a position compensated with public funds
if the individual and the official are related within the third degree by consanguinity or the second
degree by affinity. See TEX. GOV’TCODEANN. $5 573.002, .041(l) (Vernon 1994). A son is related
to his father within the first degree by consanguinity. See id. $5 573.022, .023(a), (c)(l). A nephew
who is a child of a brother or sister of the off%ial is related to the official within the third degree by
consanguinity. Id. $5 573.022, .023(c)(3). Your predecessor stipulated that the son and the nephew
are related to the Chief in the first and third degrees, respectively, by consanguinity. See Lewis
Letter, supra, at 2.
The Honorable Laura Garza Jimenez - Page 3 (JC-0193)
A relative who has been continuously employed in a particular position for a specified period
of time immediately before the relative is elected or appointed to office may retain that employment.
See TEX. GOV’T CODE ANN. 5 573.062(a) (Vernon 1994). But if a public employee continues in his
or her position, the public official related to the employee may not deliberate or vote “on the
appointment, reappointment, confirmation of the appointment or reappointment, employment,
reemployment, change in status, compensation, or dismissal of the individual if that action applies
only to the individual and is not taken regarding a bona tide class or category of employees.” Id. 3
573.062(b). Likewise, a sole officeholder, as opposed to a member of a multi-member board, may
not approve “the appointment, reappointment, confirmation of the appointment or reappointment,
employment, reemployment, change in status, compensation, or dismissal,” id., of an individual
related within a prohibited degree to the officeholder unless the action applies to a bona fide class
of employees. See Cain v. State, 855 S.W.2d 714, 716-18 (Tex. Crim. App. 1993) (en bane).
The Chiefis a public official for purposes ofchapter 573 ofthe Government Code. See Penn
Y. Rio Grande City Consol. Indep. Sch. Disk, 616 S.W.2d 658,659 (Tex. Civ. App.-Eastland 1981,
no writ) (stating that public official has nondelegable final authority to appoint or employ); Tex.
Att’y Gen. Op. No. DM-2 (1991) at 1 (stating that application of nepotism law depends upon
whether official may exercise control over hiring decisions). In accordance with the City of Corpus
Christi’s collective-bargaining agreement with the Corpus Christi Police Officers Association, the
Chiefhas exclusive authority to finally approve all interdepartmental transfers. See Jimenez Letter,
supra, at 1; Lewis Letter, supra, at 1. The Chief consequently must abstain from appointing,
reappointing, employing, reemploying, changing the status or compensation of, or dismissing his
relatives if the action permits the exercise of discretion.
Your predecessor suggested that the transfers here are changes in status in the context of
section 573.062(b) ofthe Government Code, see Lewis Letter, supra, at 3-4, and he thus apparently
assumed that these transfers are not appointments, reappointments, employments, reemployments,
or changes in compensation. See TEX. GOV’T CODE ANN. 5 573.062(b) (Vernon 1994). Our
discussion of these transfers as changes in status does not suggest that the transfers might not also
be within the rubric of any of the other employment actions listed in section 573.062(b).
In our opinion, the phrase “change in status” includes a reassignment within an organization,
whether or not a change in salary level accompanies the reassignment. The statute itself does not
define the phrase “change in status.” In such a case, we must apply definitions that comport with
common usage. See TEX. GOV’T CODE ANN. 5 311.01 l(a) (Vernon 1998). “Change” refers to a
variance of conditions or circumstances. III OXFORD ENGLISHDICTIONARY 15 (2d ed. 1989). The
word “status” is not limited to an individual’s salary level; rather, it refers broadly to an individual’s
“position or standing in . . a profession.” XVI id. at 573; see also Boaden Y. Department ofLuw
Enforcemenf, 642 N.E.2d 1330,1335 (Ill. App. Ct. 1994), afd, 664 N.E.2d 61 (Ill. 1996) (defining
“status” as state or condition or “legal relation of individual to the rest of the community”); Lowry
v. Sanai Hosp., 343 N.W.2d 1,2 (Mich. Ct. App. 1983), rev’d on other-grounds sub nom. Miller v.
C.A. Muer Corp., 362 N.W.2d 650 (Mich. 1984) (defining “status” to refer to “one’s standing or
The Honorable Laura Garza Jimenez - Page 4 (X-0193)
position”). Because these transfers have varied the conditions of the employees’ employment, they
are changes in status under section 573.062(b) of the Government Code.
Moreover, the legislative history ofthe substance ofsection 573.062(b), as a whole, indicates
that the legislature intended to preclude a public official fiomparticipating in allemployment actions
that affect the official’s relative, with the exception of those affecting a “bona fide class” of
employees. Documents explaining the effect of the 1985 enactment of this text, see Act of
May 9,1985,69th Leg., R.S., ch. 152,§ 1,1985 Tex. Gen. Laws 682,683 (amending former article
5996a of the Revised Civil Statutes), suggest that it applies to every future employment decision
regarding an employee related to the public official unless the decision applies to a bona fide class
of employees:
This bill amends [the nepotism statute] to provide that when
a person falls within an exception to the nepotism rule and is allowed
to continue in employment, the person related to him within the
prohibited degree may not participate infiture employment decisions
regarding the employee, unless the decisions apply to a bona fide
class or category of employees
SENATE COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. C.S.S.B. 599, 69th Leg., RX (1985)
(emphasis added). Likewise, members of the House were informed that “[tlhe bill would prohibit
the appointed or elected relative Tom participating in any deliberation or decision that pertain[s]
specifically to the relative exempted by this law.” HOUSE COMM. ON STATE AFFAIRS, BILL
ANALYSIS, Tex. S.B. 599,69th Leg., R.S., at 2 (1985) (emphasis added).
The Texas Court of Criminal Appeals and this office, consistently with the legislative intent,
have broadly construed the substance of section 573.062(b) of the Government Code. The Texas
Court of Criminal Appeals described the statute as preventing a sole officeholder from “taking any
action with regard to the employment of a relative.” Cain v. State, 855 S.W.2d at 718 (dicta).
Attorney General Opinion DM-46 similarly suggests that the substance of section 573.062(b)
applies to any action of a public officeholder concerning the employment of a relative within the
prohibited degree that allows for the preference or discretion of the officeholder. Tex. Att’y Gen.
Op. No. DM-46 (1991) at 4.
We conclude that the Chief may not approve the interdepartmental transfers of his son and
his nephew if the approvals permit the Chief to exercise discretion. Under section 573.062(b), a
public official may not participate in any action affecting the employment of a relative within a
prohibited degree that requires the official to make a subjective decision about the employee.
Because the interdepartmental transfers at issue affect the employment of the Chief of Police’s son
and relative, section 573.062(b) requires the Chief to refrain f?om approving the transfers if the
approvals allow him to exercise any discretion. See also Cain, 855 S.W.2d at 718.
The Honorable Laura Garza Jimenez - Page 5 (JC-0193)
We cannot finally determine whether approval ofthese particular transfers requires the Chief
to exercise discretion. Although you have told us that the Chief is authorized to finally approve the
transfers, you have not indicated whether, under the collective-bargaining agreement or any
applicable civil statutes, see TEX. Lot. GOV’T CODE ANN. ch. 143 (Vernon 1999 & Supp. 2000) the
approval is ministerial or allows the Chiefto exercise discretion. In any event, this office would not
construe a collective-bargaining agreement or make fact findings based on construction of such an
agreement. See Tex. Att’y Gen. Op. No. JC-0165 (2000) at 1.
The Honorable Laura Garza Jimenez - Page 6 (JC-0193)
SUMMARY
Section 573.062(b) ofthe Government Code requires a public
official to decline to participate in any action affecting the employ-
ment of a relative within a prohibited degree that requires the official
to make a subjective decision about the employee. The phrase
“change in status” includes a reassignment that is not taken with
respect to a “bona fide class or category of employees.”
CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee