                              The Attorney General of Texas
.“M MAlTOX
                                                  December 31, 1984
  !tomey General


  ,pame own sulldlng        Wr. Beymou L. Bpua                              opiniou         No. su-208
   o.soz12s4a               Ccfmishnm      of l!dut~.tioo
hArtIn, lx. 7s711.254s      TaxaS Educatiou   Agamy                         Bl2: Whether au iudividual       employed
lW4?52sol                   201 East 11th Street                            in rolla capacity    by school   district
  11*x 01w874.1367
                            Austin,  Texas    78701.                        for more than +wo years but promoted
 Jlecoeler s12/47+02db
                                                                            to    school   principal     tan    months
                                                                            before   her husband became a trustee
                                                                            may continue   to seme a* principal

                            Deer   CodSBiOfWT      ByUUm:

                                      raque8t
                                '..:You       en interprsutiou of                     the        nepotim     etatute,      erticle
                            5996a. V.T.C.S. Par a&z

                                          ..~ Must    tlba  Board of Trustees              of    San Beuito
1001 Texas. Suite 700                    Cousolldaccd           Indepeudmt             School       District
“0uuon. lx 77002-3111                    [hereinaftar      San Banito       CISD] terminate         from all
 I-                                      employmaut with         the district         a school     principal
                                         who had ,mrmad as'-school              principal     for ouly ten
                                         moutha when her husbaud was elected                     to the San
 I6 smaeway. sun* 312
 ubbock,lx   704014479                   Beuito cl:Z;D Board of Trustees              when, prior       to her
aoEl747.s23a                             appoilltmeut       as      prirlcipol,        she     had      remed
                                         continuously       'as
                                                           - -..-_a    school      supervisqr      vith    San
                                         Beuito 'CI:SI'for a period. of time iti eitcesa of 24
 303 N. Tmlh. Suita ‘e
nlcAll.n. nc 7sw1.1633
                                         mouths?
512ms2~7
                                   The San Ben:lto     School  District     'does uot     offer    eoutinuing
                            coatracta , under which a teacher         ia entitled    to "continue        in his
Loouun PfuL sull. a0        poeitiou   or a posi@u    with the school district"      vithout    the necessity
SanAmonlo.lx 78zosas7
 1zf?254101                 for anuual     reappointment. Educ. Code 113.107.            (Empba.sls     added).
                            Therefore.   va need :mot consider how to recoucile       the uapotism statute
                            with the coutinuin,g    contract  provisions    of the Education       Code.     See
An Equal Owmlunltvl         Uev Mexico      State  Board ai Educstion        v.   Board   of    Education of
 dflmWlw ActIon En-‘pfovn   Alamogordo Public @ho01 District,        624 P.2d 530 (N.M. 1981).

                                  The relevant  portion           of     the    nepotism          statute.       article    5996a.
                            V.T.C.S. s readn ao ~follows:

                                            Wo officer  of this State nor any office? of any
                                         district, county, city,  precinct, rchool district,
                                         or other qunicipal            subdivision          of   this   State,     nor
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       the
             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 in
             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
             continuously            as&ad            in      any      such      officec
             position,        clerkehie.         employment          or duty       for     a
             period     of two (2) ‘rears prior                to the election           or
             appointment         of the-officer           or member appointing.
             voting     for,     or conf lrming the appointment,                    or to
             the election            or c.p$ointmant           of the officer             or
             member related           to ruch employee In the prohibited
             degree.       (lImphaeis added).

       This    statute      prohibits      a school     board 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      to her
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”
for two yesrs         prior    to the election         of his relative        to the school
board.      When the languege          oil a statute fa plain         and uombiguoua,           it
met     be given       effect     according      to its     tense. Board of Insurance
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    action     to reassign   an
employee   to enhanced     respone;ibilities.      it has appointed        him to an
“office.   position,   clerkship,       employment    or duty.”       The employee’ s
length of continuous    service     for purposes     of the nepotism      law will be
determined   from the time of that board action,              rather   than from its




                                             p.   1278
My. uymn      L. B9num - Psge 3           (,JM-288)




initial     hiring   of the smployl:e.     However, ve do not believe            that an
adjustment      in employee duties     or a change in job responsibilities           made
at an administrative        level be:Lov the board will       constitute     appointment
to a nev position       for purpose,, of computing the two-year proviso.               The
nepotism     lav is concerned with the relationship            betveen    board member6
and the individual       employee;    zha board's    action   to appoint an employee
to a poaltion       Involving    incrcaaed   authority      or additional      sahrY     is
the     significant       event.      Chsngea     in    reaponsibilitles        and    job
deecriptiona       made by admiois~:rstors     subordinate       to the board do not
interrupt      the employment rela::tonship     established      vheo the board first
hired     the employee       and thus    do not start        s nev tvo-year        period
running.

      In the present   case, sch,z,l board action van necessary      to promote
the amployee from school      supervisor   to principal.    Section    23.28 of
the Education    Code governs     the employment    of school   principals      in
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
              the maximurn specified   in this,section.

The hiring      decisions     are   vltll:Ln        the    exclusive    authority    of 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.      Article    5996a. V.T.C.S..      forbids    the board from taking        any
action    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     the 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      to her
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       of 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     of that
office,       reflect     continuity       vieh   her duties        as school        supervisor.
Whether      such continuity        exists'    Is essentially       a factual     matter which




                                               p.     1279
Mr. P~ymon L. Bynum - Pspe 4                (JM-288)




this   office   cmuot    resolve.  wa believe    thst it would be contrary      to
the Purpose      of the statute    to deprive     a public   employee    in these
circmstances       of the protection    of the proviso      when the ultimate
resolution    of her employment pwritiou      involves   sn actual    demotion  in
rank and respousibility.

       Attorney      General Opinion V-1142 (1951) appears to have reached s
conclusiou      inconsistent       uith our couclusiou.            This opinion       concerned      a
county employee whose brother                was elected       to the conmiseioneracourt.
Prior to the time his brother                wok office,       the employee had served the
county     continuously        for twenty-five          monthe, first        with      the county
terracing      comittee       and then wtth the roed and bridge                   department       in
Precinct      No. 2.        The ooinion           concluded      that    the    individual       was
“coutinuously        employed by-the          county in ooe capacity           or another”        for
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
appointment        by the       comissfoners          court     to an enhanced           position.
-Gvment,          or duty within         th’c language       of the tvo-year proviso.              It
did    not     state     vhether       thirl    job    Change      v&s by      action       of    the
conmissioners        court    or e lomt-level             admixistrator.         Implicitly       the
opinion      Indicates       that     the     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.



                  The exception         ‘:I) the      nepotism      statute       for
              employees     vlth     tua years       of continuous          service
              prior    to their     relative’s       election      to the bosrd
              does not apply          to a long-term           school     district
              employee     appointed       as ichool        principal       by the
              board ten months before her husband became a board
              member.      Under ths: circumstances,               the employee
              paps     however,      be     reinstated        to    her     former,
              lover-level     positico,    with the school district.




                                                        JIM         MATTOX
                                                        Attorney     General of Texas

TOMGREEN
First Assistant        Attorney General




                                                                                                         .
Mr. Raymon L. Bynum - Page 5         (JM-288)




DAVID R. RICRARDS
Executive Assistant      Attorney   General

RICLCGILPIN
Chairman. Opinion Committee

Prepsred    by Susan Garrison
Assistant    Attorney   General

APPROVED:
OPINIONCOEMITPEE

Rick  Gilpln.  Chairman
Colln Carl
Susan Garrison
Robert Gray
