Untitled Texas Attorney General Opinion ( 2013 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 22,2013
The Honorable Jeri Yenne Opinion No. GA-1024
Brazoria County Criminal District
Attorney Re: Whether an employee with consistent but
Ill East Locust, Suite 408A periodic delivery of employment services qualifies
Angleton, Texas 77515 for the nepotism continuous-employment exception
in Government Code section 573.062
(RQ-1125-GA)
Dear Ms. Yenne:
You ask whether an at-will employee who consistently but periodically delivers
employment services qualifies for the continuous-employment exception under section 573.062
of the Texas Government Code. 1 Section 573.062 is an exception to the nepotism prohibition of
section 573.041, which provides generally that a public official may not appoint an individual to
a position that is compensated from public funds if the individual is related to the public official
within the third degree by consanguinity or the second degree by affinity. TEX. Gov'T CODE
ANN. § 573.041(1) (West 2012); see id. § 573.002 (establishing degrees of relationship to which
chapter 573 applies). Section 573.062 provides that the nepotism prohibition does not apply if:
(1) the individual is employed in the position immediately
before the election or appointment of the public official to
whom the individual is related in a prohibited degree; and
(2) that prior employment of the individual is continuous for at
least:
(A) 30 days, if the public official is appointed;
1
Letter from Honorable Jeri Yenne, Brazoria Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex.
Att'y Gen. at 3 (Apr. 24, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
The Honorable Jeri Yenne - Page 2 (GA-1024)
(B) six months, if the public official is elected at an election
other than the general election for state and county
officers;
(C) one year, if the public official is elected at the general
election for state and county officers.
!d. § 573.062(a).
Your request concerns the grandson of a current member of the Alvin Independent
School District Board of Trustees (the "District") who was first elected to his position in 2008
and then reelected in 2011. Request Letter at 2. You state the facts surrounding tbe grandson 's
employment situation as follows. 2 Prior to the board member's election in May 2008, his
grandson had worked for the District for approximately eleven months on a "consistent part-
time basis" and continued to work in this capacity after the election until he left to attend college
in August 2008. !d. The grandson did not resign his position, nor was he terminated, and there
was an understanding, " based on an oral agreement between the District and the grandson," that
the grandson would return to work for the District in the summer of 2009. !d. at 2, 4- 5. During
the grandson's absence, the District kept him on the payroll and considered him a standing
employee. !d. at 5. When he returned in June 2009 "he was not required to fill out new
paperwork ... , and he was not required to reapply for the position." !d. In September 2009, the
grandson was promoted to a full-time position with the District, and he remains in that position
today. !d. at 3. You explain that the arrangement between the grandson and the District "was not
an uncommon one for college-aged students and the District still considered them standing
employees." !d. at 4.
The nepotism prohibition of section 573.041 generally applies to the grandson because a
grandparent and grandchild are related in the second degree of consanguinity. TEX. Gov'T CoDE
ANN. § 573.023(a) (West 2012). Because school district trustees are elected "at an election other
than the general election for state and county officers," the grandson must have had six months
of continuous employment prior to his grandfather's election in 2008 to qualify for the
continuous-employment exception. !d. § 573.062(a)(2)(B). As this office has previously
concluded, the starting and ending dates for determining whether the requisite period of the
continuous-employment exception has been satisfied are the date when the individual is initially
employed and the date the elected public official assumes office, respectively. Tex. Att'y Gen.
Op. No. 1016 (2013) at 3; TEX. Gov'T CODE ANN.§ 573.062(a) (West 2012).
2
A brief submitted in response to your request disputes the facts as you have described them, providing
additional information regarding the grandson's employment and his oral agreement with the District. See Brief
from Michael J. Lansford at 1-3, 6 (May 28, 2013) (on file with the Op. Comm.). This office does not resolve
disputed issues of fact. See Tex. Att'y Gen. Op. No. GA-0876 (20 11) at l. Therefore, this opinion is limited to the
facts as you have presented them.
The Honorable Jeri Yenne - Page 3 (GA-1024)
Your main concern is "whether the grandson still qualified for the continuous
employment exception upon his return to the District during the summer of 2009." Request
Letter at 4. An opinion of this office previously addressed the situation where an employee
resigned a position after the employee's relative was elected to office. Tex. Att'y Gen. L0-96-
015, at 1. That opinion stated that subsection 573.062(b) applies to "a person who has been
continuously employed both prior to and after the appointment or election of his or her relative
up until the time of the 'appointment, reappointment, confirmation of the appointment or
reappointment, employment, reemployment, change in status, compensation, or dismissal."' !d.
at 2 (emphasis added). Because the individual "did not continue after the election in the position
the employee held before the election," that opinion concluded that "subsection (b) is
inapplicable" and the "individual [was] not exempted from the nepotism prohibitions by virtue of
section 573.062." !d. Generally, employment ends when the "employment relationship" is
broken. See Tex. Att'y Gen. Op. No. JC-0442 (2001) at 2 (considering whether a teacher's
retirement broke the employment relationship with the school district as a matter of law, thus
disqualifying the teacher for the continuous-employment exception). Therefore, once the
continuous-employment exception is satisfied, it exempts an individual from the nepotism
prohibition of section 573.041 only until the employment relationship is broke~.
Answering your question requires a determination as to whether the grandson's
employment was "continuous" under section 573.062(a)(2) and remained so after the
grandfather's election. Resolving that factual question "will depend on the specific
circumstances of a school district, the employee, and the terms of the underlying employment
contract" and is a determination to be made by the District in the first instance. Tex. Att'y Gen.
Op. No. 1016 (2013) at 3; Tex. Att'y Gen. Op. No. JC-0185 (2000) at 3--4 (stating that the
underlying circumstances of the employment relationship determine whether a part-time, at-will
employment is continuous). We can advise, however, that employment "on an intermittent, day-
to-day basis" does not constitute continuous employment. Tex. Att'y Gen. Op. No. JC-0185
(2000) at 4; see also Bean v. State, 691 S.W.2d 773, 775 (Tex. App.-El Paso 1985, pet refd)
(stating that a judge's "repeated appointments" of his uncle "to represent different ... clients in
different cases over a six-year period does not constitute continuous employment in one
position"). By contrast, periodic service provided pursuant to a year-long contract may
constitute "continuous" employment. Tex. Att'y Gen. Op. No. JM-45 (1983) at 3 (discussing
statutory exception to nepotism prohibition analogous to section 573.062).
The Honorable Jeri Yenne - Page 4 (GA-1024)
SUMMARY
An at-will employee who consistently but periodically
delivers employment services may qualify for the continuous-
employment nepotism exception under Government Code section
573.062, provided that his employment was continuous. Whether
employment is continuous depends on the underlying
circumstances of the employment relationship and is a
determination to be made by the employer in the first instance.
Once the continuous-employment exception is satisfied, it exempts
an individual from the nepotism prohibition of section 573.041
only until the employment relationship is broken.
Attorney General ofTexas
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Stephen L. Tatum, Jr.
Assistant Attorney General, Opinion Committee