*1 The Attorney General of Texas October 29, 1985 JIM MATTOX

Attorney General SuProme CQun Building Opid.an No. JX-371 Ur. U. 1. Kirby P. 0. Box ta4a Colldlreloner of Educatloe Aurtln. TX. 757t1.254s Be: whether l teach er tray be Texaco Education Agency 201 Saw Bleventh Street promtad reglatrar In a Tdex.5lW57C1257 Td.co@n 5lZ475.0255 Auatln, Texan 78701 dlatrlct wbere

hueband serves on the board of truatee8. and related questlons 714 Jlcluon. Suite 700 oalla& TX. 752024505 Dear Hr. Kirby: 2141742.S!% Tou request ILCI lnterpretatlon of the nepotism law, article 5996a. 4824 Alberta Ave.. suite 150 V.T.C.S., wblch prohibits a board of echool trustee8 from employing El Pm.o. TX. 70205.2193 permn related within a prohibited degree to a board medcr. YOU 01- state tbat an lni.ivldual was otlgl~lly qloycd as a teacher by an ln August lndepmdmt school dlotrlct .Xier husband, a relative the degree of l fflnlty wbject 1001 Tqxu. Suite 7~0 .~. vlthln to the nepotlm lav. became a HQY4tOn. TX. 77002.2111 trustee of the di.at.rlct ia April 1978. See Attorney General Opinion 712f22%x5 V-785 Sioco the teacher had byxt time been employed for rhe vae l lloved to continue working forty-five montha contlnuoualy, for the l chool d.letrlct the under grandfather provision w5 aroadway. suit. 312’ nepatlm kv thm in effect: Lubbock TX. 7S4al-247S Soa747-5225 that nothins herein contained... votlnS for, or &all :prrevmt. the appolnmt, 008 N. Tmth, SuIta 8 McAllm. TX. 7s5ol-16s5 : cmflrmrtloo of cay person who shall have hem 512mS2.4547 cmtlnuuuely .emplayed: in my 8UCh off+. ea.. ,~. a porltlaa:~-clerkablp, .emplmt or duty ;*"perlod olf two (2) yeero'ptir to the election or

200 MaIn Plaza, Sut4 400 * fi' appaintmmt of the officer or member appointing. San Antonlo, TX 7S2os27m7 the l ppolntmeat, or 512m5.4191 ;:,. ;’ :'votinS *or. or -confitning c. the l lm~ction l ppoinwt _.. the officer

m&er't~latcd to mcb ~cmployee lo the prohibited : _~. degree; :~ ..-. 2 ..- c b 97;~at:,l59 (former rtfcle 5996a. V.T.C.S.).

hcr8.~1,951,~;5296..Irq., ~Actes:1985, ~~5!$b.%eS:,,eh;.lS2, d.:800-01 (amendment by Senate Bill ~.lo,..599.$o -quotti$ .lan~uaSe ~offectivo.,May 24. 1985). Tbla provision ~~~e$loVed.tbe~~+r to contimu her +@yamt In the dlatrlct but did aat :.allarr .the, board of trustoem to trenefor her l dlffermt

'poeltlon. Attqsoq General Opiniona JM-288 (1984); M-671 (1970); Letter Advisory No. 69 (1973).

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Hr. W. N. Kirby - P#ISS 2 In July 19:'9. the board of trustees promoted tha teacher to high rag18 t:car. Accordtag Information you have submitted. she was :g:Lven the registrar position at her teacher’s daily salary rate plus em additional ten days employment. Eer contract and the school records placed her at pay grade eight, although ths registrar position LIB customarily classlflcd as a grade 10B position. The trustees’ action In promoting this lndlvvidual violated the nepot~lm statute. The ma year proviso of the former nepotism statute, quoted above, allowed the teacher to keep the “office. position, ~:larkshlp. employment or duty” In which she had been continuously tmployed for at least two years before her husband became a trustee. General Opinion JM-234 (1984); Letter Advisory No. 69 (1973). It did not authorize the board to appoint her even a less remunerative ode, to assign to a different position. her additional day11 of vork. General Opinion MU-135 (1980); Letter Advisory No. 69 The Taas Education Agency has concluded that he:: promotion to registrar violated article 5996a. V.T.C.S.. and we a(;rhe wlth this conclusion.

The school dlstrlct viabes to continue this amployee as You auk whether the district may return her to a pay identical that which she maintained before the promotion but allow her to coutlme to perform her duties as registrar. qusstlotl about potential action- by the school trustees Your

requires us to lntm~rst article 5996a, V.T.C.S., as amended by Senate Senate Bill No. 599 Bill No. 599 of ,tbe Slxty-nlnth LaSlslature. became effective on May 24. 1985. and the grandfather clause of article 59968, V.T.C.S.. now reads as follows: that nothing herein contained . . .

shall prevent the appointment. voting for, or conflrmet~lon of any person who shall have been Nch office, continuously employed In posltlon , clerkship, employment or duty far a period of’ one (1) year prior to the election or appointment of the officer or member appointing, voting for, or conflrmlng the appointment. or to the election or appointment of the officer member rolatsd to such aployee ln the prohibited *3 Mr. U. N. Kirby - Iage 3 (Jh-371)

reappoint~nent, euployuent, confirmation, reeuploy- uent, chrzge in status, campensatiott, or disuissal of such person. If such action applies only to such perron and Is not taken with respect to a bona fidar class or category of employees. (Euphasicyadded).

The employee j.n question was continuously uployed for forty-five months as a teacher before her husband became a board member in 1978. The nepotism law prohibited the school board from promoting her to See Attorney In 1979; ahe was lnaliglble for that position. General Cpinlon H-728 (1970). The board's action vat ineffective See Fairless v. change her legal status f&u teacher to Cameron County Water Improvemoat District go. 1. 25 S.2d 651 (Tex. Civ. App. In our opinion - San konio 1930, writ ref'd). employee Is still II teacher purposes of interpretlng'the nepotism statute even though she has perforued the duties of registrar since 1979. Under the recently auended grandfather provision of article 5996a. V.T.C.S., the'echool board may change her employment status and compensation, but the trustee whom she Is related may not particfpate In the deliberation or vote thereon.

Under article 5996a, V.T.C.S., as amended by the Sixty-ninth Legislature. a school teacher with one year of continuous euployuent prior to her husband% election as school trustee may continue Tba to serve the district as a teacher. board say change euploynent and compensation, but her relative say not deliberate or vote ,tlrereon.

Very ruly your , d-/h

. JIM MATTOX Attorney General of Texas TON GREEN

First Assistant Attorney General

DAVID R. RICHARDS

Executive Assistant General

ROBERT GRAY

Special .Assistant General

Mr. U. W. Kirby - Pwgc 4

RICK GILPIN cbairmau, opi.nion comittac

Prepared by Suun 1,. Garrieon

Aarirteut Attoruey General

APPSDVBD:

OPINIOI~ COIMITYKE

Kick Gilpin, Chairnm

Colin Cirl

Sueau Garrieou

Tony Guillory

JiaUdlirrger

Jennifer Riggo

Baucy Suttou .

sarab Woelk

BrucaYoua~blood ; I .,.’

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