Untitled Texas Attorney General Opinion ( 1979 )

The Attorney General of Texas May 24, 1979 .RK WHITE orney General Honorable K. L. Carnley Opinion No. KW-23 Caldwell County Attorney Caldwell County Courthouse Re: Whether a long-time county Lockhart, Texas 70644 employee who was dismissed shortly before his wife took office as a county. commissioner may be rehired. Deer Ms. Cernley: You have .a$ced three questions relating to the application of the nepotism laws to a situation in Caldwell County. You advise that an individual had been employed by the county for more than 17 years. The employee% wife was elected county commissioner for precinct two at the election held on November 7, 1979. Gn November 28, 1979, the outgoing precinct two commissioner discharged the employee. You indicate ~that the discharge was arguably without good cause, but there has been no @Ii&l determination or reinstatement. Your first question is: L May the new commissioner rehire her husband in his old position if the firing was without good cause? The Nepotism Statute, article 59964 V.T.C.S., provides in part: No officer . . . of any.. . county,. . . shall appoint, or vote for, or confirm the appointment . . . or duty, of any person related within the second degree by affinity or within the third degree by consanguinity to the person so appointing or so voting, or to any other member of any such . . . court of which such person so appointing or voting may be a member when the salary, fees, or compensation of such appointee is to be paid for, directly’ or indirectly, out of or from public funds or fees of office of any kind or character whatsoever; provided, that nothing herein con- tained, . . . shall prevent the appointment, voting for, p. 69 I. ii``raole K. L. Carnleg - Page Two (KW-23 1 or confirmation of any person who shall have been continuously employed in any such office, position, clerkship, employment or duty for a period of two (2) years prior to the election or appointment of the officer or member appointing, voting for, or confirming the appointment, orto the election or appointment of the officer or member related to such employee in the prohibited degree. The discharge of an employee terminates a period of continuous employment for purposes of the Nepotism,Statute. Letter Advisory No. lSl(1978). Thus, before November 28 the individual had been continucusly employed for a period of more than two years, but after November 28 the continuous employment was broken and he no longer met the requirements of the proviso in the statute. It has been suggested that the two year period is measured from the day on which the election was held, and that the employee therefore was continuously employed for two years prior to hi wife’s election and thus satisfied the statutory proviso. We need not decide whether a post-election break in employment would be a bar to continued employment, since Attorney General Opinions V-B42 (1951)and M-862 (197B demonstrate that the facts in this case constitute a pre-election break. Attorney General Opinion V-ll42 indicated: We have concluded that the ~ord~election’as used in the above Act should be construed to mean the time of taking office, . . . It is to be noted that the tact uses ‘the wads ‘election or appointment,’ and clearly the Legislature intended the critical date from which the twoyear period was to be computed should be the same in the case of either an appointed official or an elected official, or it would have used language different from that found here. The caption to House Bill 509 so provides, because it is there stated the.provisions of [article 59964 V.T.C.S.] &all not apply to persons holding positions for two years prior to the time an officer or board member related to them takes office.’ (Emphasis in original). Thus, the individual may not be rehired, since he had not been continuously employed by the county for a period of two years prior to the time his wife took office on January I, 1979. See also Attorney General Opinion Ii-992 (1977). Your second end third questions are: 2. What liability would the Commissioners Court have, if any, if she rehires her husband? 3. If she attempts to rehire her husband must the County Auditor put him on the payroll and if he does, what liability would be have? P? 70 ., r . - Honorable K. L. Carnley - Page Three. (Mw-23) Article 59964 V.T.C.S., provides: No officer or other person included within [article 5996a1 shall approve any account or draw or authorize the drawing of any warrant or order to pay any salary, fee or compensation of such inellglble officer or person knowing him to be so ineligible. Article SSSSf,V.T.C.S., provides: Whoever violates any provision of [article 5996a-5996el shall be guilty of a misdemeanor involving official misconduct, and shall be fined not less than one hundred, nor more than one thousand dollars. Thus, a commissioner who votes for or confirms the appointment of the ineligible employee or who approves an account or authorizes the drawing of a warrant to pay his salary would be liable to be convicted of a misdemeanor involving official misconduct. A county auditor who approves the account or drew or authorized the drawing of a warrant to Pay the individual would also be liable to conviction. SUMMARY A long-time county employee who was discharged between hll wife’s election to the commissioners court and her teking office, may not be reemployed. MARK WHITE Attorney General of Texas JOHNW. FAINTER,JR. First Assistant Attorney General TED L. HARTLEY Executive Asslstant Attorney General Prepared by C. Robert Heath Assistant Attorney General APPROVED: OPXNION COMMlTTRE C. Robert Heath, Chairman David B. Brooks p. 71 c -P ~.. ,. .- : Honorable K. L. Camley - Page Four (MW-23) Walter Davis Susan Garrison RiclcGilpin William G Reid Bruce Youngblaod