                        @ffice of tfie !Zlttornep@enera
                                    &ate of &exae



                                    September 20,199l




Mr. Dermis R. Jones                       Opinion No. DM-46
Commissioner
Texas Department of Mental                Re: Whether the Texas nepotism law,
 Health and Mental Retardation            article 5996a, V.T.C.S., is violated when
P.O. Box 12668                            the superintendent of a Texas Depart-
Austin Texas 78711-2668                   em of Mental Health and Mental.
                                          Retardation school awards a merit
                                          salary to his spouse, who is employed at
                                          the same facility (RQ-110)

Dear Mr. Jones:

       You ask whether the Texas nepotism law, article 5996a, V.T.C.S., is violated
when the superintendent of a Texas Department of Mental Health and Mental
Retardation (MHMR hereinafter) school awards a merit salary ‘increase to his
spouse, who is employed at the same facility. You inform us of the following facts
relevant to your question:

         Recently, this facility received accreditation from a nationally
         recognized body due in large part to the efforts of the employees
         of the school.

              In order to recognize those employees who performed
         exceptionally well, the superintendent established a committee
         to evaluate performance and recommend to him persons to
         receive merit salary increases: The superintendent was not a
         member of the committee and had no part in deciding to whom
         the merit salary increases would be awarded. The superinten-
         dent’s spouse was recommended for and received a merit salary
         increase.

We conclude that the nepotism statute has been violated in this situation.




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Mr. Dennis R. Jones - Page 2           (DM-46)




        The superintendent of a facility of the Texas Department of Mental Health
and Mental Retardation is an officer within the meaning of the Texas nepotism
statute and may not employ a person who is related to him within the degree of
kinship prohibited by article 59%a, V.T.C.S. Attorney General Opinion JM-91
(1983). There are exceptions to certain aspects of the nepotism law for persons who
have been continuously employed prior to the election or appointment of the state
officer who is related to the employee. V.T.C.S. art. 59,96a, 5 l(b), (c); Attorney
General Gpinion DM-2 (1991). Because we are informed that the superintendent’s
spouse was employed at the facility at least 30 days before the superintendent was
appointed, the employment of the superintendent’s spouse in the same facility is
not a violation of section l(a) of the nepotism statute. See V.T.C.S, art. 5996a, 0
l(b)(l); Attorney General Gpinions DM-2 (1991); JM-1188 (1990); see also
Attorney General Opinion JM-636 (1987) (period of continuous service must be at a
time when the employee’s relative is not an officer with the power to hire and fire
the employee). To answer your question, we must turn to section l(c) of article
5996a.

       Subsection (c) of section 1 of article 5996a describes permissible situations
when an employer may participate in future employment decisions about a relative
who is allowed to continue working pursuant to subsection (b):

                When a person is allowed to continue in an office,
         position, clerkship, employment, or duty because of [sufficient
         prior continuous service,] . . . the . . . officer. . . who is related to
         such person in the prohibited degree shall not participate in the
         deliberation or voting upon the appointment, reappointment,
         employment, confirmation, reemployment, change in status,
         compensation, or dismissal of such person if such action applies
         on& to such person and is not taken with respect to a bona fide
         clars or category of employees. (Emphasis added.)

         We 6nd that the superintendent must be deemed as a matter of law to have
participated in the deliberation of the compensation of his spouse.             This
,determination is based on the fact that the superintendent is statutorily empowered
 to fix the salaries of his employees. V.T.C.S. art. 3176. The applicability of the
 nepotism statute turns on whether the superintendent may exercise control of
 employment decisions. See Pena v. Rio Grade Ci&ConrOr Indep. School Dirt., 616
 S.W.2d 658 (Tex. Civ. App.-Bastland 1981, no writ); Attorney General Opinions
JM-1188 (1990); JM-581(1986). The superintendent can not avoid participation in


                                       p. 232
Mr. Detmis R. Jones - Page 3          (DM-46)




matters regarding compensation by establishing a committee to recommend
employees who deserve a salary increase, because the committee’s recommendation
can not abrogate or limit the superintendent’s exclusive authority granted by statute.
Hence, the superintendent’s statutory authority to determine the salaries of facility
employees is the legal equivalent of participation in the compensation of those
employees within the meaning of section l(c) of article 5996a.

        We next consider whether the superintendent’s’ participation in the
compensation of his spouse applied only to his spouse and was not taken with
respect to a bona fide class or category of employees. An officeholder may
participate in decisions about the compensation of his relative without violating
section l(c) of the nepotism statute if the compensation is provided to at least one
other employee and given with respect to a bona fide class or category of employees.
See, e.g., Attorney General opinion MW-135 (1980). We are informed that the
spouse is one of four state school employees who were awarded a merit salary
increase in recognition of their contribution to the accreditation effort. Thus, we
consider whether the superintendent’s award of a merit salary increase to employees
who “performed exceptionally well” in the accreditation effort is an “action taken
with respect to a bona fide class or category of employees.”

        The question of what constitutes an action taken ‘with respect to a bona fide
class or category of employees” was considered in Attorney General Opinion JM-
1188, which determined that-a sheriff could not promote his son and daughter even
though they had sufficient prior continuous service to retain their jobs in the sheriffs
office after their father became sheriff. (The son was promoted from deputy sheriff
to sergeant, and the daughter was promoted from jailer to deputy sheriff.) That
opinion states, “We do not think that the language regarding actions taken with
respect to a bona fide category of employees was intended to give an offkeholder’s
relatives the benefit of expectations created by custom or common practice.” Thus,
we see that custom or common practice cannot be the basis for deciding whether the
merit salary increase was taken with respect to a bona fide category of employees.

        The Committee on State Affairs bill analysis of Senate Bill 599 (committee
substitute), the 1985 bill that added section l(c) of article 5996a, states that the bill
addresses the problem that an employer (who falls within an exception to the
nepotism statute under section (b) and (c) because of continuous prior service) “is
not precluded from participating in future employment decisions concerning his
relative, such as promotions and raises.” In other words, with the addition of section
l(c) to the nepotism statute, when an employee of a relative continues his


                                     P. 233
Mr. Dennis R. Jones - Page 4        (DM-46)




employment because of sufkient prior service, he need not be denied a promotion
or raise if he is a member of a bona fide class or category to which such promotion
or raise applies. The bill analysis gives one example of a decision appling to a bona
fide class or category of employees - “an across-the-board rak for all employees.”
An award is granted to only a select few employees. The question for consideration
becomes what standard is used in the officeholder’s action with respect to the bona
fide class or category which received the award.

       We think that “action taken with respect to a bona fide category of
employees” means that an officeholder’s action must be based on objective criteria,
which do not allow for the preference or discretion of the officeholder. An example
of such an -action would be a decision to give a cost-of-living increase to all
employees, Attorney General Opinion JM-1188 (1990), or an automatic salary
increase or promotion based, for example, on years of service or level of education.
We are now concerned with a salary increase awarded for “those who performed
exceptionaLly well” after a MHMR school received national accreditation. Thus, in
this case, the performance of an employee, as evaluated by the officeholder,
determines his inclusion in the category of employees who received an award. We
must determine whether the evaluation of the employees who became award
recipients involved the subjectivity of the office holder.

       Any decision to give a salary increase based on a performance evaluation
contains an element of subjectivity. We find that because the decision to give a
merit salary increase to recognize those who performed exceptionally well in the
accreditation effort involved an evaluation of the employees’ performance, a process
which can never have all subjective factors eliminated, it was not “action taken with
respect to a bona fide class or category of employees.” As determined above, the
superintendent “participated” in this evaluation; consequently, in spite of the fact
that the recipients of that award were determined by a committee of which the
superintendent was not a member, the superintendent is in violation of section l(c)
of the nepotism statute.

                                  SUMMARY

              The nepotism law, article 5996a, V.T.C.S., is violated when
          the superintendent of a Texas Department of Mental Health
          Mental Retardation school awards a merit salary increase to his
          spouse, who is employed at the same facility.




                                       P. 234
Mr. Dennis R. Jones - Page 5         (DM-46)




                                                DAN      MORALES
                                                Attorney General of Texas

‘WILL PRYOR
 First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEAHIcK!j
Special Assistant Attorney General

 MADELEINE B. JOHNSON
~.Chair, Opinion Committee

Prepared by Kay H. Guajardo
Assistant Attorney Generai




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