                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                 August 3,2004



The Honorable Frank Madla                                 Opinion No. GA-0226
Chair, Intergovernmental Relations Committee
Texas State Senate                                        Re: Whether, consistently with section 573.041 of
Post Office Box 12068                                     the Government Code, a home-rule municipality
Austin, Texas 7871 l-2068                                 may appoint a department head who is related
                                                          to the mayor within the third degree by
                                                          consanguinity or the second degree by affinity if
                                                          the city charter authorizes the city manager to
                                                          “appoint, subject to consultation with the Board of
                                                          Commissioners, all department heads”
                                                          (RQ-0180-GA)

Dear Senator Madla:

        You ask whether, consistently with section 573.041 of the Government Code, a home-rule
municipality may appoint a department head who is related to the mayor within the third degree by
consanguinity or the second degree by affinity if the city charter authorizes the city manager to
“appoint, subject to consultation with the Board of Commissioners, all department heads.“’ See TEX.
GOV’TCODE ANN. $573.041 (Vernon 1994).

        You state that a home-rule municipality’s board of commissioners (the “Board”) met in a
regular meeting to consider several items of business, including the appointment of a department
head. See Request Letter, supra note 1, at 1. The appointment was discussed in a closed meeting,
but the Board took “‘no action”’ on the appointment in the subsequent open meeting. Id. Under the
municipality’s charter, the city manager may appoint a department head “subject to consultation with
the Board of Commissioners.” Id. Because the Board took “no formal action” on the city manager’s
recommendation,     discussed in the closed meeting, you inform us that the city manager’s
recommendation “was in effect accepted, and the position was filled.” Id. Nevertheless, when it was
determined that the appointment violated the anti-nepotism statutes due to the newly appointed
department head’s relationship with the city mayor, the department head resigned “involuntarily.”
Id.




           ‘See Letter from Honorable Frank Madla, Chair, Intergovernmental Relations Committee, Texas State Senate,
to Honorable Greg Abbott, Texas Attorney General (Feb. 4,2004) (on file with the Opinion Committee, also available
at http://www.oag.state.tx.us)  [hereinafter Request Letter].
The Honorable   Frank Madla - Page 2            (GA-0226)




        You inform us that the former department head is related to the mayor “within a degree that
would allow section 573.041 of the Government Code to apply. ” Id. at 2. You further indicate that,
under the city charter, “the mayor . . . has the right to vote. ” Id. Given that the Board did not vote
on the city manager’s recommendation       in this situation (and, we presume, the former department
head is not related to the city manager), you wish to know whether the department head’s
appointment violated section 573.041 of the Government Code. See id.

         Section 573.041 prohibits a public official from appointing, confirming   the appointment   of,
or voting to appoint or confirm

                an individual to a position that is to be directly        or indirectly
                compensated from public funds . . . if

                        (1) the individual is related to the public official within [the
                third degree by consanguinity or the second degree by affinity]; or

                         (2) the public official holds the appointment or confirmation
                authority as a member of a . . . local board . . . and the individual is
                related to another member of that board . . . within [the third degree
                by consanguinity or the second degree by affinity].

TEX.GOV’T CODE ANN. 3 573.041 (Vernon 1994); see also id. 0 573.002 (describing the degrees
ofrelationship to which chapter 573 applies). A “public official” subject to section 573.041 includes
“an officer . . . of a . . . municipality” and “an officer or member of a board . . . of a
. . . municipality.” Id. 5 573.001(3). A public official who violates section 573.041 “shall be
removed” from the official’s position and “commits an offense involving official misconduct.” Id.
$0 573.081(a), .084(a). An appointment that violates section 573.041 is void. See Tex. Att’y Gen.
Op. No. GA-0177 (2004) at 2.

         Typically, public officials with statutory authority to make appointments may not abdicate
that authority by delegating it to an employee. See Tex. Att’y Gen. Op. No. GA-0073 (2003) at 2.
Delegating “hiring decisions does not relieve the members of [a] governing body of’ the nepotism
law’s requirements, even though, by delegating, the governing body does not appoint, confirm, or
vote to appoint or confirm an individual-the       actions to which the text of section 573.041 appears
to be limited. Tex. Att’y Gen. Op. No. DM-2 (1991) at 1; see TEX.GOV’T CODE ANN. 5 573.041
(Vernon 1994). But as the Eastland court of appeals made clear in 1981, and as this office
consistently has concluded, section 573.041 applies to an officer who may exercise control over
hiring decisions, even if the officer refrains from confirming, appointing, or voting in a particular
case. See Pena v. Rio Grande City Consol. Indep. Sch. Disk, 616 S.W.2d 658, 659 (Tex. Civ.
App.-Eastland 198 1, no writ) (stating that “[a] superintendent’s recommendation to the school board
concerning the appointment of teachers, even when consistently followed, cannot abrogate or limit”
the board of trustees’ exclusive statutory authority); Tex. Att’y Gen. Op. Nos. GA-0073 (2003)
at 3; JC-0336 (2001) at 4; DM-2 (1991) at 1; cJ: Tex. Att’y Gen. Op. No. GA-0123 (2003) at 2-4
(determining that a school board may, under an express Education Code provision, delegate to the
superintendent final authority to select personnel).
The Honorable Frank Madla - Page 3             (GA-0226)




         A home-rule municipality may delegate appointing authority, and avoid the application of
section 573.041 to the governing board, if it does so by charter. Compare Tex. Att’y Gen. Op. No.
DM-2 (1991) at 2 (determining that a delegation made by ordinance could be repealed and, therefore,’
did not avoid the application of the anti-nepotism law to the appointment of a city council member’s
brother) with Tex. Att’y Gen. Op. No. O-5274 (1943) at 10 (determining that a municipality whose
charter prohibited city council members from participating in hiring decisions avoided the
application of the anti-nepotism laws to city council members). But the delegation must provide the
delegatee full and final appointing authority and may not reserve any authority to the governing
body. For example, in Attorney General Opinion O-5274, this office determined that, because the
City of Brownsville’s city charter delegated full hiring authority to the city manager, the city’s
governing body played no role in appointing city employees. Tex. Att’y Gen. Op. No. O-5274
(1943) at 10. The City of Brownsville’s charter endowed the city manager with appointment
authority and withheld all appointment authority from the members of the governing board:

               The City Manager. . . shall have the power to appoint and remove all officers
        and employees in the administrative service of the city. . . .

                  Neither the City Commission, nor any of its committees or members, shall
        direct or request the appointment of any person to or his removal from office by the
        City Manager or any of his subordinates, or in any manner take part in the
        appointment or removal of officers and employees in the administrative service of
        the city.

Id. at 2-3 (quoting BROWNSVILLECHARTER $3 20,21). Given the complete delegation of appointing
authority, this office concluded that the anti-nepotism statute did not prohibit the city manager from
hiring relatives of the city governing board members. See id. at 10.

         Here, by contrast, while the charter delegates to the city manager some authority to appoint
department heads, the charter plainly precludes the appointments from occurring until the city
manager has consulted with the Board. This office ordinarily does not construe city charters, in
deference to municipal officers’ authority to construe their cities’ charters. See Tex. Att’y Gen. Op.
No. GA-0130 (2003) at 3; GA-0068 (2003) at 2 n.2; JC-0143 (1999) at 3. Nonetheless, the city
charter at issue here expressly reserves to the board of commissioners           some authority in the
appointment of department heads:          the city manager’s appointment       authority is “subject to
consultation with the Board of Commissioners.”         Request Letter, supra note 1, at 1. While we
cannot determine the extent of the Board’s consultation authority, your letter indicates that the board
may use its authority to accept or reject a particular appointment:     since the Commission took no
formal action, you aver, “the city manager’s recommendation for the department head position was
in effect accepted. . . .” Request Letter, supra note 1, at 1. Because the Board has retained authority
to effectively accept or reject the city manager’s recommendations,      the Board members are public
officials subject to section 573.041. See Pena, 616 S.W.2d at 659; Tex. Att’y Gen. CIp. No. DM-2
(1991) at 1. We accordingly conclude that the municipality could not appoint the mayor’s relative
to a department head position.
The Honorable Frank Madla       - Page 4        (GA-0226)




         You ask specifically whether the fact that the Board did not vote on the city manager’s
recommendation prevented a violation of section 573.041. See Request Letter, supra note 1, at 2.
It is not the Board’s lack of formal action in a particular case that takes Board members out of the
category of public officials subject to section 573.041. Rather, it is their existing authority under the
city charter to exercise their discretion to control hiring decisions that places them within section
573.041. See Pena, 616 S.W.2d at 659; Tex. Att’y Gen. Op. No. DM-2 (1991) at 1. Additionally,
given the Board’s authority to accept or reject an appointment, the Board’s lack of action in any case
is tantamount to a vote to accept the appointment.     Thus, the Board did not prevent a violation of
section 573.041 by its lack of formal action.

         You also ask whether the mayor’s participation in the closed-meeting deliberation among the
Board members and the city manager regarding the mayor’s relative’s appointment “constitute[s]
an action that” section 573.041 prohibits. Request Letter, supra note 1, at 2. It does. See TEX.
GOV’TCODE ANN. 5 573.041(l) (V emon 1994). The mayor has, you aver, the right to vote and is
therefore a public official with hiring authority subject to section 573.041. Cf: City of Centerville
v. Adkisson, 291 S.W.2d 798,800 (Tex. Civ. App.-Waco 1956, no writ) (concluding that a mayor
who had no right .to vote was not a city alderman). In addition, section 573.041 prohibits the
Board itself from appointing the mayor’s relative, regardless of the mayor’s abstention. See id.
9 573.041(2). Moreover, the appointment was void. See Tex. Att’y Gen. Op. No. GA-0177 (2004)
at 2.

        Your remaining question is premised upon a conclusion that the Board members             did not
violate section 573.041. Given our conclusion to the contrary, we need not answer it.
The Honorable Frank Madla - Page 5             (GA-0226)




                                        SUMMARY

                         A home-rule municipality may delegate appointing authority
               to avoid the application of section 573.041 to the governing board, if
               it delegates full and final authority by charter, reserving no authority
               in the municipal governing body. Thus, a home-rule municipality
               charter that grants the city manager the power to “appoint, subject to
               consultation with the [city’s governing board], all department heads,”
               does not take board members out of the category of public officials
               who are subject to section 573.041 of the Government Code, which
               prohibits a public official from appointing a relative. In a city with
               such a city charter provision, a mayor with the right to vote on
               matters before the board may not participate in a consultation
               regarding the possible appointment of a person related to him or her
               within the third degree by consanguinity or the second degree by
               affinity.    Section 573.041 additionally prohibits any other board
               member from participating in the consultation.        In such a case, the
               appointment of the mayor’s relative is void.

                                               Very truly yours,




                                               Attome&eral         of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
