Untitled Texas Attorney General Opinion ( 1979 )

The Attorney General of Texas September 12, 1979 md4 +4 . . . 77 tr.e$#g J-IL- II Honorable M. L. Rrockette Opinion No. RW-56 Commissioner of Education Texas Education Agency Re: Whether a school district may 201 East Eleventh Street employ relatives of the School At&in, Texas 78701 superintendent without violating th8 nepotism laws. Dear Commissioner Brockette: You have re.quest8d our opinion c0nc8dng the applicability of the nepotism statute to a school district superintendent and hiring practices Of a school district. You lmve’asked under what condition8 a school district may hire ,the superintendentb relatives Who are within the degree9 Of kitWhipset forth in article 5996a; V.~.C.S. Your question has tien aa a result of better Advisory No. 156 (1978) in which it WMsaid the college district could not employ the president% relatives because the president of a junior college by statutory authority exercised joint control over the selection of faculty and other employeea See R&c. Code S 130.082(a) (no one may be hired except upon the presidenirecommendatindatia3. The nepotbm statute provi8es: Art. 5996a. Wepotbm’ No officer of this State nor any officer of any district, county, city, prednct, school district, or other municipal subdivision of this State, ncr any officer or member of any State district, county, eity, school district or other munloipal board . . . shall appoint, or vote for, oc confirm the appointment to any office, position, clerkship employment or duty, of any pemon related within the second degree by affinity or within the third degree by eonsa@nity to the person so appointing or so votinS . . . when the salary, fees, or oompenaation of such appointee is to be paid for, directly or indirectly, out of or from public fun&. . . . p. 177 Honorable M. L. Brockette - PageTwo (Mw-56) For putposes of the nepotism statute we believe that the superintendent is an 0ffiOeh See Educ. Code S 23.26. The arperintendent, therefore, may not ordbuuKy hire his kH Bee Attorney General Opinion R-500 0947). However, if the superintendent #ma no detert%iii control over selection of those hired, and they are not considered employed and are not paid untii some action by the school board, relatives of the r\paintendent may be hired by the school district. On the other hand, b the extent the superintendent has been delegated authority under the district policy to hire or appoint without subsequent action by the school board he ls obvioraly exercish control in the selection process and may not hire his relatives. Letter Advisory NOS 158,152 tl978). We believe that the superintendent may recommend or forward a subordinate’s recommendation to the school board that his or the subordinate’s relative be hired. The board is not bound by that recommendation and unlike the facts of Letter Advisory No. 156 tl976), is not limited to those recommended by the superintendent. Ifthe policy of the rhool ‘district requires the board of trustees to consider for employment only those persons recommended by the superintendent, we believe that Letter Adviswy No. 156 0978) would be applicable and would preclude the Wperintendent from recommendhq his relatives Whether his recommendation &es to the level of de facto control over the hirii as a matter of custom or practice in violation of the nepotism statute is in each ~caaea factual question which we cennot resolve in the opinion procem. SUMMARY A school district may ~employrelatives of the superintendent wh&e he exercises no control over who b selected and does not himself appoint cr hire hts reiativea MARK WHITE Attorney General of Texas JOHN W. FAINTER, JR Pint Assistant Attorney General TED L. HARTLEY Executive Assistant Attorney General Prepared su David B. Brooks Assistant Attorney General p. 178 Honarble M. L. Brockette - Page Three (M-56) APPROVED: OPINIONCOMMlTFEE taiFBsb Chairman . waler Davis Btmn Garrison Rick Gilpin William G Reid Bruce Youngblood p. 179