Untitled Texas Attorney General Opinion

The Attorney General of Texas
.“M MAlTOX
December 31, 1984
!tomey General
,pame own sulldlng Wr. Beymou L. Bpua opiniou No. su-208
o.soz12s4a Ccfmishnm of l!dut~.tioo
hArtIn, lx. 7s711.254s TaxaS Educatiou Agamy Bl2: Whether au iudividual employed
lW4?52sol 201 East 11th Street in rolla capacity by school district
11*x 01w874.1367
Austin, Texas 78701. for more than +wo years but promoted
Jlecoeler s12/47+02db
to school principal tan months
before her husband became a trustee
may continue to seme a* principal
Deer CodSBiOfWT ByUUm:
raque8t
'..:You en interprsutiou of the nepotim etatute, erticle
5996a. V.T.C.S. Par a&z
..~ Must tlba Board of Trustees of San Beuito
1001 Texas. Suite 700 Cousolldaccd Indepeudmt School District
“0uuon. lx 77002-3111 [hereinaftar San Banito CISD] terminate from all
I- employmaut with the district a school principal
who had ,mrmad as'-school principal for ouly ten
moutha when her husbaud was elected to the San
I6 smaeway. sun* 312
ubbock,lx 704014479 Beuito cl:Z;D Board of Trustees when, prior to her
aoEl747.s23a appoilltmeut as prirlcipol, she had remed
continuously 'as
- -..-_a school supervisqr vith San
Beuito 'CI:SI'for a period. of time iti eitcesa of 24
303 N. Tmlh. Suita ‘e
nlcAll.n. nc 7sw1.1633
mouths?
512ms2~7
The San Ben:lto School District 'does uot offer eoutinuing
coatracta , under which a teacher ia entitled to "continue in his
Loouun PfuL sull. a0 poeitiou or a posi@u with the school district" vithout the necessity
SanAmonlo.lx 78zosas7
1zf?254101 for anuual reappointment. Educ. Code 113.107. (Empba.sls added).
Therefore. va need :mot consider how to recoucile the uapotism statute
with the coutinuin,g contract provisions of the Education Code. See
An Equal Owmlunltvl Uev Mexico State Board ai Educstion v. Board of Education of
dflmWlw ActIon En-‘pfovn Alamogordo Public @ho01 District, 624 P.2d 530 (N.M. 1981).
The relevant portion of the nepotism statute. article 5996a.
V.T.C.S. s readn ao ~follows:
Wo officer of this State nor any office? of any
district, county, city, precinct, rchool district,
or other qunicipal subdivision of this State, nor
Hr. Saymon L. Bpnum - Page 2 (JPl-288)
sny officer or member of any State district.
county, city, echoal district or other muolclpal
board . . . ah611 appoint, or vote for, or confirm
the appointment to any office, position,~ clerk-
ahlp, employment;? duty. of any pereon related
vithln the second dcllrae by affinity or within the
third degree by consanguinity to the person 60
appointing or ao vo~::tng. or to any other member of
sny such board, the Legislature, or court of which
such pereoo ao appointing or voting ma9 be a
member. when the salary, feea. or compenaotion of
such appointee is to be paid for, directly or
indirectly, out of 3.c from public funda or fees of
office of any ki,nd or character whatsoever;
provided, thst not’hlng herein contained, nor in
any other nepotism l.aw contained in any charter or
ordinance of any municipal corporation of thla
State, shall prever,t the appoiutmant, voting for,
or confirmation of any person who ahall hsve been
continuously as&ad in any such officec
position, clerkehie. employment or duty for a
period of two (2) ‘rears prior to the election or
appointment of the-officer or member appointing.
voting for, or conf lrming the appointment, or to
the election or c.p$ointmant of the officer or
member related to ruch employee In the prohibited
degree. (lImphaeis added).
This statute prohibits a school board from employing or con-
firming the employment of a ‘persoo related to s school trustee within
the second degree by affinity. The school principal IS related to her
huaband by affinity within s prohibited degree. Attorney General
Oplnioa V-785 (1949). An exception within the nepotism statute allows
the continued service of “auy person vho shall have been continuously
employed In sny such office, .poaition. clerkship, employment or duty”
for two yesrs prior to the election of his relative to the school
board. When the languege oil a statute fa plain and uombiguoua, it
met be given effect according to its tense. Board of Insurance
C&saiooers of Texas v. Gjuardian Life Insurance Co. of Texas, 180
S.W.2d 906 (Tax. 1944). The%xceptior. .Ipplies only where the employee
hes been continuously employl:d for two years in the “office, position,
elerkahip. employment or dut:r” held when his relativr become6 a school
board member. -See Letter Advisory No. 151 (1978).
10 our opinion, vhen the board takes action to reassign an
employee to enhanced respone;ibilities. it has appointed him to an
“office. position, clerkship, employment or duty.” The employee’ s
length of continuous service for purposes of the nepotism law will be
determined from the time of that board action, rather than from its
p. 1278
My. uymn L. B9num - Psge 3 (,JM-288)
initial hiring of the smployl:e. However, ve do not believe that an
adjustment in employee duties or a change in job responsibilities made
at an administrative level be:Lov the board will constitute appointment
to a nev position for purpose,, of computing the two-year proviso. The
nepotism lav is concerned with the relationship betveen board member6
and the individual employee; zha board's action to appoint an employee
to a poaltion Involving incrcaaed authority or additional sahrY is
the significant event. Chsngea in reaponsibilitles and job
deecriptiona made by admiois~:rstors subordinate to the board do not
interrupt the employment rela::tonship established vheo the board first
hired the employee and thus do not start s nev tvo-year period
running.
In the present case, sch,z,l board action van necessary to promote
the amployee from school supervisor to principal. Section 23.28 of
the Education Code governs the employment of school principals in
school districta vhich have rwe adopted the continuing contract law.
(a) The board ofi truetaaa of any independent
school district me9 employ by contract a superin-
tendent, s princip~rl. or principals, teachers, or
other executive officers for a term not to exceed
the maximurn specified in this,section.
The hiring decisions are vltll:Ln the exclusive authority of the board
of trustees. Pana v. Rio Griwde City Consolidated Independent School
District, 616 S.W.Zd 658 (Tex: Civ. App. - Eastland 1981. no writ).
Since the school board appointed the employee in this case to the
position of principal 01119 ten months before her husband joined ~the
board. her employment as prjncipal is not protected by the tvo-year
proviso. Article 5996a. V.T.C.S.. forbids the board from taking any
action to rehire her or confirm her employment as school principal.
She ma9 finish out her contract, but she ma9 not enter into a new
contract as principal vith the school board on which her husband
sew88 . Attorney General C$inions MU-286 (1980); H-857 (1971). Of
course, If her husband res,igns or othervise leaven his position on the
board before her contract is to be reneved, the board may continue her
as principal.
She may, however, be reinstated under certain conditions to her
former position as school supervisor. because such' reinstatement is
not an appointment to a pol%:ition of enhanced status and authority
which is the object of thti: nepotism statute's proscription. Her
reinstatement to the school wpervlsor position ma9 be deemed to fall
vithio the two-year proviso IX, the extent that her contractual duties
as principal. apart from th'e status and enhanced authority of that
office, reflect continuity vieh her duties as school supervisor.
Whether such continuity exists' Is essentially a factual matter which
p. 1279
Mr. P~ymon L. Bynum - Pspe 4 (JM-288)
this office cmuot resolve. wa believe thst it would be contrary to
the Purpose of the statute to deprive a public employee in these
circmstances of the protection of the proviso when the ultimate
resolution of her employment pwritiou involves sn actual demotion in
rank and respousibility.
Attorney General Opinion V-1142 (1951) appears to have reached s
conclusiou inconsistent uith our couclusiou. This opinion concerned a
county employee whose brother was elected to the conmiseioneracourt.
Prior to the time his brother wok office, the employee had served the
county continuously for twenty-five monthe, first with the county
terracing comittee and then wtth the roed and bridge department in
Precinct No. 2. The ooinion concluded that the individual was
“coutinuously employed by-the county in ooe capacity or another” for
the requisite period, and he could therefore keep his job after his
brothe&‘s assumption of office. It did not expressly consider whether
the assigument to the road and bridge coumittee constituted an
appointment by the comissfoners court to an enhanced position.
-Gvment, or duty within th’c language of the tvo-year proviso. It
did not state vhether thirl job Change v&s by action of the
conmissioners court or e lomt-level admixistrator. Implicitly the
opinion Indicates that the change in posttions with the county
involved no promotion in status. authority, and responsibilities. We
so construe Attorney General Opinion V-1142 and accordingly find lt
not inconsistent with this opittiou.
The exception ‘:I) the nepotism statute for
employees vlth tua years of continuous service
prior to their relative’s election to the bosrd
does not apply to a long-term school district
employee appointed as ichool principal by the
board ten months before her husband became a board
member. Under ths: circumstances, the employee
paps however, be reinstated to her former,
lover-level positico, with the school district.
JIM MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
.
Mr. Raymon L. Bynum - Page 5 (JM-288)
DAVID R. RICRARDS
Executive Assistant Attorney General
RICLCGILPIN
Chairman. Opinion Committee
Prepsred by Susan Garrison
Assistant Attorney General
APPROVED:
OPINIONCOEMITPEE
Rick Gilpln. Chairman
Colln Carl
Susan Garrison
Robert Gray