Case Information
*1 February 24, 1987 Opinion No. Honorable Hugh Parmer JM-636 Chairman ue: Whether an individual may avoid
Intergovernmental Relations application the nepotism law to Committee a by resigning a Texas State Senate P. 0. Box 12068 position on the board of trustees Austin, Texas 78711 a school district and subsequently
standing for re-election Dear Senator Parmer:
You inquire about the application law, article 5996a. V.T.C.S., to a particular case involving a teacher who to a school board member. An independent school district hired a teacher in August of 1985. The school board approved the teacher’s rehiring in March of 1986. In April, 1986. the teacher’s mother was elected to the school board. A mother and daughter are related within the first degree of consanguinity, Letter Advisory Nos. 115 (1975); 67 (1973), a relattonship covered by following prohibition of the nepotism act:
No officer of this State . . . nor any officer or member of any State district, county, city, district or other municipal board . . . shall appoint, or vote for, or confirm appointment to any office, position, clerkship, employment or duty, of any person related within the second degree by affinity or the third degree by consanguinity person so appointing or so voting, or to any other member of any such board . . . 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. . . . art. 5996a.
The teacher had not completed a year of service prior to the time her mother joined the board. Thus, she did not qualify exemption proviso set out in the nepotism law:
[Plrovlded, that nothing herein contained. nor in any other nepotism law contained in any charter or ordinance of any municipal corporation this State, shall prevent the appointment. voting for, or confirmation of any person who shall have been employed In such office, any position, clerkship, employment or duty for a of one (1) year prior to the election or appointment the officer or member appointing, or confirming the appointment, or to voting for, the election or appointment the officer or member related to such employee in the prohibited degree. art. 5996a. The school board on which the teacher’s mother
served could not renew the daughter’s teaching contract, but teacher would be allowed to serve out her present contract. See, -, Attorney General Opinions MU-286 (1980); M-862 (1971); Letter Advisory No. 70 (1973).
You ask whether the school board member may resign in February of 1987 and file to run again in the April 4, 1987 election so that her daughter might continue to hold her job as teacher. The teacher’s contract would presumably be renewed during the time her mother was not on the board.
As a preliminary matter, we will point out that the board member will continue to serve in a holdover capacity after her resignation until she is replaced by a successor. Article XVI, section 17. of the Texas Constitution provides as follows:
All officers this State shall continue to perform the duties of their offices until successors shall be duly qualified.
An officer’s resignation creates a legal vacancy which can be filled See Attorney General Opinion M-659 in the manner provided by law. The officer, however, continues to serve and to have (1970). duties and powers of office until a successor is qualified. Jones v. City of Jefferson, 1 S.W. 903 (Tex. 1886); Pyote Independent School District v. Estes. 390 S.W.Zd 3 (Tex. Civ. App. - El Paso 1965, writ ref’d n.r.e.). Thus, until legal vacancy created by the school trustee’s resignation filled by a successor, she will remain a member of board, and the board will be barred reappointing the trustee’s daughter as a teacher.
Assuming that the trustee resigns from the board and is replaced by a successor. we must consider whether her daughter may be hired another school year in March of 1987.
Honorable gugh Parmer - Page 3
We believe the school board may reappoint the teacher In this case, if her mother has resigned from the board and has been replaced by a qualified successor. If no board member related to the teacher in a prohibited degree, the plain language of article 5996a. V.T.C.S., would not bar her reappointment. We caution, however, against the practice of trading. art. 5996c.
Your request letter also suggests that teacher will be exempted from the nepotism act if her mothe.r is again elected to the board. You reason that her year of prior to her mother’s resumption of office in April, 1987, will constitute one year of prior continuous service within the exemption provision. We will next address this issue.
We may look to the emergency clause of the bill in order to ascertain legislative intent underlying the one-year requirement. Popham v. Patterson, 51 S.W.2d 680 (Tex. 1932); see also Attorney General Opinion V-1142 (1951). A 1949 amendment to the nepotism law added the exemption provision. Acts 1949, 51st Leg., ch. 126. at 227. The original exemption provision exempted persons who had been “continuously employed . . . for a period of two (2) years prior to the election or appointment of the officer” to the employee a prohibited degree. Id. Il. Article 5996a, V.T.C.S., has been amended twice since 1949.?ee Acts 1951, 52nd Leg., ch. 97, at The most recent 159; Acts 1985, 69th Leg., chT152, at 683. amendment, adopted in 1985. reduced the required from two years to one year and made other changes affecting the employment of persons who are exempted by the one year provision. Acts 1985, 69th Leg.. ch. 152, 91, at 683. The amendments subsequent to 1949 have not, however, changed the requirement that the employee have been continuously employed “prior” to his relative’s assumption of office. Thus, we may still look to the emergency clause 1949 amendment for some indication of legislative intent.
The emergency clause states in part: The fact that numerous employees the State and Its agencies and subdivisions whose services are valuable to the State are required to give up such employment because members of their f,amily may be, from time to time, elected to offices in this State under whom such employees hold
employment, and the fact that persons who have served the State
election to some office of a relative should not
be discharged that reason alone, and the fact that the purpose law was not oust such persons legitimate employment by the State, create an emergency. . . .
p. 2879 *4 Acts 1949, 51st Leg., ch. 126, 13. at 227. This clause recognizes value of a public employee's services, particularly au employee who has served for a designated of time. The length of service provides a measure of the employee's value, in that it signifies some degree of job loyalty and job experience.
The one year may also provide an opportunity for disinterested evaluation of the employee. Once the employee's relative becomes a board member, the other board mem@ers may hesitate to fire him because of his relationship to their fellow board member. A supervisor, answerable to the board, may be reluctant to give a negative evaluation to an employee to a board member. During the one year of prior service, however. the employee may prove his merit, and the board may evaluate him. without being subject to such indirect influences as an actual nepotism relationship might cause. Cf. New -- Mexico State Board of Education v. Board of Education, 624 P.2d 530 (N.M. 1981) (competency tenured teacher was established years before family member was elected to school board).
The legislature has decided to distinguish between employees who have completed one year of prior continuous service before relative takes office and employees with less than one year See, e.g., Bean v. State, 691 S.W.Zd 773 (Tex. App. - El service. Paso 1985. writ ref'd): Attorney General Oninion Nos. JP-371 (1985): MW-23 (1979); M-862 (1971). We cannot disregard the distinction which the legislature has enacted. We believe the legislature intended that public employees have a year of prior service free of a nepotism relationship. See, e.g., Attorney General Opinion M-862 (1971) (period of prior service starts when employee begins work, not when he signs contract).
Therefore, ff the trustee in this case severs her connection with the school board in February of 1987 and rejoins the board in April of 1987, her daughter will not have completed the one year of continuous time her relative took office. Only if trustee remains off the board for a full year will her daughter have an opportunity to complete the required year service.
SUMMARY The exemption provision law, article 5996a, V.T.C.S., requires the employee complete one year of continuous at a time that the employee's relative is not an officer with power to hire and fire the employee.
Where a school trustee leaves office two months and then resumes office, trustee's has not completed one year of continuous *5 time her takes Only if the trustee remains off the board office. for a full year till her daughter have an oppor- tunity complete required year Attorney General of Texas JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General