Judges: DAN MORALES, Attorney General of Texas
Filed Date: 2/4/1991
Status: Precedential
Modified Date: 7/6/2016
Honorable Maida Modgling County Attorney of Medina County Medina County Courthouse Hondo, Texas 78861
Re: Application of nepotism law when an officer holds over, and construction of prior continuous service provisions of nepotism law (RQ-2160)
Dear Ms. Modgling:
You ask several questions about the Texas nepotism law, article 5996a, V.T.C.S. As background, you inform us that the city council of Devine, a Type A general-law municipality has, by ordinance, delegated to its city administrator the authority to hire city employees. See Local Gov't Code section 22.071 (governing body of general-law municipality may appoint officers and agents). You explain that when the brother of a member of the city council applied for employment with the city, the city administrator took the position that the nepotism law prevented the city from hiring him. As a consequence, the city council member resigned. The city then hired his brother.
Your first question is whether the nepotism law would in fact prohibit the city from hiring the brother of a city council member if the city had delegated all hiring decisions to a city administrator. The nepotism law prohibits a member of a governing body from voting for the hiring of a person related to any member of the body within a prohibited degree.1 Delegation of hiring decisions does not relieve the members of the governing body of the burdens of the nepotism law. Attorney General Opinion O-4686 (1942). You bring to our attention, however, Attorney General Opinion O-5274 (1943), which stated that a city could hire a relative of a member of the city's governing body because the city's charter prohibited members of the governing body from participating in hiring decisions. That holding is not inconsistent with Attorney General Opinion. The applicability of the nepotism law depends on whether an officer may exercise control over hiring decisions. Pena v. Rio Grande City Consol. Indep. School Dist.,
Several of your other questions are based on the assumption that the resignation of the council member resolved the nepotism problem. We must point out, however, that the council member would continue to serve in a holdover capacity until replaced.2 Plains Common Consol. School Dist. No. 1 of Yoakum County v. Hayhurst,
Your final question is in regard to the construction of subsection (b) of section 1 of article 5996a, which provides:
Nothing herein contained, nor in any other nepotism law contained in any charter or ordinance of any municipal corporation of this State, shall prevent the appointment, voting for, or confirmation of any person who shall have been continuously employed in any such office, position, clerkship, employment or duty for the following period prior to the election or appointment, as applicable, of the officer or member related to such employee in the prohibited degree:
(1) at least 30 days, if the officer or member is appointed;
(2) at least six months, if the officer or member is elected at an election other than the general election for state and county officers; or
(3) at least one year, if the officer or member is elected at the general election for state and county officers.
In other words, a relative of an officer may continue in his position if he has served for a specified length of time before the related officer's election or appointment.
You ask how long the brother must have worked for the city in order to retain his job if the other brother were either reappointed or re-elected to the city council. a Local Gov't Code section
If the former council member were elected to fill a council vacancy at a special election, his brother would be able to retain his job if he had served for the six months preceding the election. V.T.C.S. art. 5996a, section (b)(2) (applicable when officer is elected); see generally Attorney General Opinion
Very truly yours,
DAN MORALES Attorney General of Texas
WILL PRYOR First Assistant Attorney General
MARY KELLER Assistant Attorney General
RENEA HICKS Special Assistant Attorney General
SUSAN GARRISON Chairman, Opinion Committee
Prepared by Sarah Woelk Assistant Attorney General
Pruitt v. Glen Rose Independent School District Number One , 126 Tex. 45 ( 1935 )
Pena v. Rio Grande City Consolidated Independent School ... , 1981 Tex. App. LEXIS 3549 ( 1981 )
Plains Common Consol. School Dist. No. 1 v. Hayhurst , 122 S.W.2d 322 ( 1938 )
Papachristou v. City of Jacksonville , 92 S. Ct. 839 ( 1972 )