Case Information
*1 The Attorney General of Texas December 31, 1984 .“M MAlTOX
!tomey General opiniou No. su-208 Wr. Beymou L. Bpua ,pame own sulldlng Ccfmishnm of l!dut~.tioo o.soz12s4a Bl2: Whether au iudividual employed hArtIn, lx. 7s711.254s TaxaS Educatiou Agamy l W4?52sol 201 East 11th Street in rolla capacity by school district 11*x 01w874.1367 78701. for more than +wo years but promoted Austin, Texas Jlecoeler s12/47+02db school tan months principal
before her husband became a trustee may continue to seme a* principal Deer CodSBiOfWT ByUUm:
'..:You raque8t en interprsutiou the nepotim etatute, erticle
5996a. V.T.C.S. Par a&z ..~ Must tlba Board of Trustees of San Beuito Cousolldaccd Indepeudmt School District 1001 Texas. Suite 700 [hereinaftar San Banito CISD] terminate from all “0uuon. lx 77002-3111 employmaut with the district a school principal I-
who had ,mrmad as'-school principal for ouly ten moutha when her husbaud was elected to the San I6 smaeway. sun* 312 cl:Z;D Board of Trustees when, prior to her Beuito ubbock,lx 704014479 appoilltmeut prirlcipol, she had remed aoEl747.s23a 'as a supervisqr vith San - -..-_ Beuito 'CI:SI'for a period. of time iti eitcesa of 24 303 N. Tmlh. Suita ‘e mouths? nlcAll.n. nc 7sw1.1633 512ms2~7 The San Ben:lto School District 'does uot offer eoutinuing coatracta , under which a teacher ia entitled to "continue in his Loo uun PfuL sull. a0 poeitiou or a posi@u with the school district" necessity vithout San Amonlo. lx 78zosas7 for anuual reappointment. Educ. Code 113.107. (Empba.sls added). 1zf?254101 Therefore. va need :mot consider how to recoucile uapotism with the coutinuin,g contract provisions of Education Code. See Uev Mexico State Board ai Educstion An Equal Owmlunltvl v. Board of Education of dflmWlw ActIon En-‘pfovn Alamogordo Public @ho01 District, 624 P.2d 530 (N.M. 1981).
The relevant portion the nepotism statute. article 5996a.
V.T.C.S. s readn ao ~follows:
Wo officer this State nor any office? of any district, county, city, precinct, rchool district, or other qunicipal subdivision of this State, nor *2 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 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 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 officec as&ad any such position, clerkehie. employment or duty for a period of two (2) ‘rears prior to the election or the-officer or member appointing. voting for, or conf lrming the appointment, or to the election or c.p$ointmant the officer or member related to ruch employee In the prohibited degree. (lImphaeis added).
This statute prohibits a school 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 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” relative to the for two yesrs prior the election of his board. When the languege oil a fa plain and uombiguoua, it its tense. Board Insurance met be given effect according 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 to reassign an employee to enhanced it has appointed him to an respone;ibilities.
“office. position, clerkship, employment or duty.” The employee’ s length of continuous service for purposes of the nepotism law will be determined from time of that board action, rather than from its
p. 1278
My. uymn L. B9num - Psge 3 (,JM-288) the smployl:e. However, ve do not believe that an initial hiring of
adjustment in employee duties or a change in job responsibilities made at an administrative level be:Lov the board will constitute for purpose,, of computing a nev position two-year proviso. The
nepotism lav is concerned with the relationship betveen board member6 zha board's action to appoint an employee and the individual employee; Involving incrcaaed authority or additional is to a poaltion sahrY and job event. reaponsibilitles significant Chsngea deecriptiona made by admiois~:rstors subordinate the board do not interrupt the employment rela::tonship established vheo first thus do not start s nev tvo-year period hired the employee and running.
In the present case, sch,z,l board action van necessary to promote Section 23.28 of the amployee from school supervisor to principal.
the Education Code governs the employment of school principals 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 maximurn specified in this,section. The hiring decisions are vltll:Ln the exclusive authority 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. forbids the board from taking any Article 5996a. V.T.C.S.. 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 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 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 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 that office, reflect continuity vieh her duties supervisor.
Whether such continuity exists' Is essentially a factual matter which
p. 1279
Mr. P~ymon L. Bynum - Pspe 4 (JM-288) thst it would be contrary
this office cmuot resolve. wa believe to the Purpose of the statute to deprive a public employee in these the proviso when circmstances the protection the ultimate resolution of her employment pwritiou involves sn actual demotion rank and respousibility.
Attorney General Opinion V-1142 (1951) appears to have reached s uith our couclusiou. This opinion concerned a conclusiou inconsistent county employee whose brother was elected to conmiseionera court.
Prior to time his brother wok office, the employee had served the monthe, first county for twenty-five with the county terracing comittee and then wtth the roed and bridge department Precinct No. 2. The ooinion concluded that the individual was or another” for “coutinuously employed by-the county in ooe capacity 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 by the comissfoners court to an enhanced position. tvo-year proviso. -Gvment, or duty within th’c language of It did not state vhether thirl job Change v&s by the court or e lomt-level admixistrator. Implicitly the conmissioners opinion Indicates that 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. for
The exception ‘:I) the nepotism employees vlth tua years of continuous service to the bosrd prior their relative’s election does not apply a long-term district employee appointed ichool principal by ten months before her husband became a board member. Under ths: circumstances, the employee however, be reinstated former, paps lover-level positico, with the school district. MATTOX JIM Attorney General of Texas TOM GREEN Attorney General
First Assistant .
o. 1280
Mr. Raymon L. Bynum - Page 5 (JM-288)
DAVID R. RICRARDS
Executive Assistant Attorney General
RICLC GILPIN
Chairman. Opinion Committee
Prepsred by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COEMITPEE
Rick Gilpln. Chairman
Colln Carl
Susan Garrison
Robert Gray