                               ATTORNEY GENERAL OF TEXAS
                                             GREG       ABBOTT




                                              November     l&2003



Mr. Robert Scott                                        Opinion No. GA-01 23
Chief Deputy Commissioner of Education
Texas Education Agency                                  Re: Applying the anti-nepotism laws, Govemrnent
170 1 North Congress Avenue                             Code chapter 573, to an independent school district
Austin, Texas 78701-1494                                (RQ-0060-GA)

Dear Mr. Scott:

       At the request of the Aldine Independent         School District (the “District”), former
Commissioner Alanis asked two questions about applying the anti-nepotism statutes, Government
Code chapter 573, to an independent school district.’ See TEX. GOV’T CODE ANN. ch. 573 (Vernon
1994 & Supp. 2004).

         Chapter 573 regulates the appointment or employment of a public official’s close relatives
to positions within the official’s appointment or confirmation authority. 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 or fees of office if:

                         (1) the individual is related to the public official within a
                  degree described by [slection 573.002; or

                           (2) the public   official holds the appointment or confirmation
                  authority as a member      of a state or local board . . . and the individual
                  is related to another      member of that board . . . within a degree
                  described by [slection     573.002.

Id. 8 573.041 (Vernon 1994). Section 573.041( 1) refers to “relationships within the third degree by
consanguinity or within the second degree by affinity.” Id. 6 573.002; see also id. $3 573.021-.025
(Vernon 1994 & Supp. 2004) (providing for determining relationships by consanguinity or by
affinity). Appointments to certain positions are excepted, see id. 8 573.061 (Vernon Supp. 2004),
as well as appointments of individuals who have been continuously employed for a certain period



         ‘Letter fromFelipe T. Alanis, Commissioner ofEducation, Texas Education Agency, to Honorable Greg Abbott,
Texas Attorney General (May 30,2003) (on file with Opinion Committee) [hereinafter Request Letter].
Mr. Robert Scott - Page 2                       (GA-0123)




of time prior to the official’s election or appointment, see id. 5 573.062 (Vernon 1994). An
ineligible individual who is appointed to a position, notwithstanding the prohibition, may not be paid
for any work performed in the position: “A public official may not approve an account or draw or
authorize the drawing of a warrant or order to pay the compensation of an ineligible individual if the
official knows the individual is ineligible.” Id. 5 573.083.

         Mr. Alanis’s questions involve the appointment of two individuals, each related to District
trustees within a prohibited degree. See Request Letter, supra note 1, at 1. The questions are based
on an assumption that, with respect to a school district, the board members are the public officials
to whom the statutory nepotism prohibition applies. Your general counsel has asked us to assume
that the District school board has, consistently with section ll.l63(a)( 1) of the Education Code,
“delegated to the superintendent the authority to” select personnel. Id.; Telephone Conversation with
David Anderson, General Counsel, Texas Education Agency (July 29,2003); see TEX. EDUC.CODE
ANN. 6 11.163(a)(l) (Vernon 1996).

         Mr. Alanis asked first about the appointment and compensation of a bus driver. See Request
Letter, supra note 1, at 1. We are informed that the District’s transportation director offered a board
member’s daughter-in-law employment as a bus driver on January 11,200l. Id. The “school board
did not consider or act on the employment.”        Id. District officials terminated the individual’s
employment     on September 18, 2001, after determining that it violated chapter 573 of the
Government Code. Id. The next payday arrived on September 20, 2001, and the District asks
whether it may compensate the bus driver as though she had been eligible for employment. Id.

         A school district’s board of trustees has “exclusive power and duty to govern and oversee the
management” of a district’s public schools, and it may adopt rules and bylaws as necessary to
execute its powers. TEX. EDUC. CODE ANN. 8 11.151(b), (d) (Vernon 1996). The board “may
employ by contract a superintendent,” who is the school district’s “educational leader and . . . chief
executive officer,” for a term of no more than five years. Id. 5 11.201(a)-(b) (Vernon Supp. 2004).
Among other things, section 11.163 of the Education Code requires a school board to “adopt a policy
providing for the employment          and duties of district personnel,” which must provide the
superintendent with “sole authority to make recommendations to the board regarding the selection
of all personnel other than the superintendent, except that the board may delegatefinal authorityfor
those decisions to the superintendent.” Id. 8 ll.l63(a)( 1) (Vernon 1996) (emphasis added). A
school district superintendent is also responsible for, among other duties, assigning and evaluating
district personnel, and initiating an employee’s termination or suspension. See id. 8 11.201(d)(2)-(4)
(Vernon Supp. 2004).

          Although you do not ask whether the District correctly assumed that the bus driver’s hiring
violated section 573.041 of the Government Code, we believe that assumption should be examined.
For purposes of chapter 573, a public official includes “an officer or member of a board . . . of a
. . . school district .” TEX. GOV’T CODEANN. 5 573.001(3)(B) (V emon 1994). This definition has
been interpreted to designate only an officer who may exercise authority over a governmental entity’s
appointment or employment decisions. See Pena v. Rio Grande City Consol. Indep. Sch. Dist.,
616 S.W.2d 658,660 (Tex. Civ. App.-Eastland 1981, no writ); Tex. Att’y Gen. Op. Nos. JC-0336
(2001) at 3-4, JC-0193 (2000) at 3, DM-2 (1991) at 1. An officer is a person upon whom a.
Mr. Robert Scott - Page 3                        (GA-0123)




“sovereign function of the government [has been] conferred . . . to be exercised by him for the
benefit of the public largely independent of’ others’ control. Aldine Indep. Sch. Dist. v. Standley,
280 S.W.2d 578,583 (Tex. 1955); see Pena, 616 S.W.2d at 659-60 (applying Aldine’s definition of
an officer to a nepotism issue); Tex. Att’y Gen. Op. No. JM-91 (1983) at 2 (same). A person with
the authority to select personnel exercises a sovereign function. See Tex. Att’y Gen. Op. No. JM-72
(1983) at 6; see also Tex. Att’y Gen. Op. No. JM-91 (1983) at 2 (stating that the superintendent of
a mental health and mental retardation facility, as the “person with the power to appoint the . . . staff
and fix their salaries,” is an officer for purposes of the nepotism laws).

         In our opinion, a superintendent to whom a school board has delegated “final authority” to
select personnel under section ll.l63(a)( 1) of the Education Code is a “public official” with
appointment authority for purposes of section 573.041, Government Code. A superintendent who
exercises final authority to select personnel exercises a sovereign function of the government largely
independent of the school board’s control. Our conclusion applies to the anti-nepotism laws’
application only; we do not consider whether a school district superintendent is an officer for other
purposes. See Tex. Att’y Gen. Op. No. JM-72 (1983) at 5.

         Furthermore, a member of a school board that has delegated to the superintendent final
authority for personnel selection is not a public official with appointment authority for purposes of
section 573.04 1. Although the trustees are officers for other purposes and are members of the board,
they have no vestigial authority to select district personnel. Accordingly, while the superintendent
may not hire his or her relatives, section 573.04 1 does not prohibit the hiring of board trustees’
relatives.   CJ: Tex. Att’y Gen. Op. Nos. JC-0336 (2001) at l-2 (stating that, for purposes of
Government Code section 573.041, “a police chief who has, under a collective-bargaining
agreement, final authority to appoint, reward, discipline, or demote employees” is a public official);
JC-0193 (2000) at 3 (same); Tex. Att’y Gen. LO-95-012, at 2 (concluding that school board
member’s nephew may referee high school football games because the board has no control over the
choice of referees).

         We conclude that, unless the bus driver is also related to the superintendent within a degree
prohibited by the anti-nepotism statute, she was lawfully employed and may be compensated for the
work she performed. This conclusion is contingent upon the assumption that the District delegated
final authority to select personnel to the superintendent.

         Our conclusion is distinguishable from the conclusion that the Eastland Court of Civil
Appeals reached in the 1981 Pena case. See Pena, 616 S.W.2d at 660. Relying on two statutes, one
that provides trustees with “exclusive” authority to “manage and govern” the districts’ public
schools, and the second, which authorized a board to “employ by contract a superintendent,               a
principal or principals, teachers, or other executive officers,” the court determined that a school
board cannot delegate its statutory authority or control over personnel selection to the superintendent.
See id. at 659-60; see also Act of June 2,1969,61st Leg., R-S., ch. 889, $5 23.26(b), 23.28(a), 1969
Tex. Gen. Laws 2735’2954, repealed by Act of May 27’1995’74th Leg., R-S., ch. 260’9 58(a)(l),
1995 Tex. Gen. Laws 2207,2498 (formerly sections 23.26(b) and 23.28(a) of the Education Code).
According to the court, the statutes provided the board with “the exclusive right and sole legal
authority to appoint or employ teachers,” and the board could not “abdicate” its statutory authority
Mr. Robert Scott - Page 4                      (GA-0123)




to appoint or confirm personnel selections. Pena, 616 S.W.2d at 659-60. In addition, the court said,
a superintendent may recommend certain individuals to the board, but no delegation of authority to
the superintendent or others takes away the board’s exclusive statutory authority:       “A school
superintendent   merely performs functions delegated to him by the trustees who do not by such
delegation abdicate their statutory authority or control.” Id. at 660.

         Since the 1981 Pena decision, the legislature has significantly revised relevant portions of
the Education Code, providing a school district superintendent with increased authority. In 1995,
for example, the legislature amended section 11.201(a) of the Education Code to change the
superintendent’s   status from that of “administrative manager” to “chief executive officer” of the
district. Compare Act of May 27,1995,74th Leg., R.S., ch. 260’8 1, sec. 11.201(a), 1995 Tex. Gen.
Laws 2207, 2230, with Act of June 30, 1984, 68th Leg., 2d C.S., ch. 28, art. III, part F, 5 1, sec.
13.351(a), 1984 Tex. Gen. Laws 117, 156. In the same year, germane to the issue here, the
legislature adopted section 11.163(a)(l), which expressly authorizes a school board to delegate “final
authority” to select personnel to the superintendent. See Act of May 27, 1995’74th Leg., R.S., ch.
260,s 1,1995 Tex. Gen. Laws 2207’2230; TEX. EDUC.CODEANN. 0 11.163(a)(l) (Vernon 1996).

        A school board that has delegated final authority under section 11.163(a) no longer has “the
exclusive right and sole legal authority to appoint” or confirm personnel selections on which the
Pena decision hinged. See Pena, 616 S.W.2d at 659-60. For this reason, the conclusion in Pena
does not apply here.

         Mr. Alanis asked second whether a public school superintendent may reassign a teacher who
is related to a school trustee without action by the board. See Request Letter, supra note 1, at 1.
Your predecessor provided us with the following facts: The school district employs a teacher whose
father is a board member. Id. The District wants to know if the superintendent “may promote the
teacher to a supervisory position (departmental chair) for which there is supplementary pay without
action by the board.” Id. This issue involves the reassignment of an employee, not a selection
covered by section ll.l63(a)( 1).

         The superintendent may reassign a trustee’s relative to fill a department chair position, and
the board is not authorized to act on the matter. Section 11.201(d) of the Education Code expressly
reposes in the superintendent the duty to “assum[e] administrative authority and responsibility” for
assigning and evaluating district personnel. TEX. EDUC.CODEANN. 4 11.201(d)(2) (Vernon Supp.
2004). The superintendent’s duties listed in section 11.201(d) were adopted in 1995 by the same bill
that authorized a school board to delegate final authority to select personnel to the superintendent.
See Act of May 27,1995,74th Leg., R.S., ch. 260’8 1, sets. 11.163(a)(l), 11.201(d), 1995 Tex. Gen.
Laws 2207,2230-3 1. Because the District’s school board has no authority to assign personnel, board
members are not public officials for purposes of chapter 573, Government Code.

         Mr. Alanis informed us that the teacher satisfied the continuous employment provision to the
anti-nepotism statute, section 573.062 of the Government Code. See Request Letter, supra note 1,
at 1; see also TEX. GOV’T CODEANN. 8 573.062 (Vernon 1994) (providing continuous employment
exception). Because the board members are not the relevant public officials for determining the
nepotism laws’ applicability, this fact is irrelevant.
Mr. Robert Scott - Page 5                      (GA-0123)




                                        SUMMARY

                        A school district that has delegated to the superintendent final
               authority to select personnel under section 11.163(a)(l), Education
               Code, may employ and compensate a bus driver related to a trustee
               within a prohibited degree under chapter 573 of the Government
               Code, unless the driver is also related within a prohibited degree to
               the superintendent.      See TEX. EDUC. CODE ANN. 8 ll.l63(a)( 1)
               (Vernon 1996). The conclusion of Pena v. Rio Grande City
               Consolidated Independent School District, that a school district’s
               superintendent is not a public official for purposes of chapter 573,
               Government Code, does not apply to a school board that has
               delegated final authority to select personnel to the district’s
               superintendent.   See Pena v. Rio Grande City Consol. Indep. Sch.
               Dist., 616 S.W.2d 658,660 (Tex. Civ. App.-Eastland 1981, no writ).

                       Because a superintendent has exclusive statutory authority to
               assign district personnel under section 11.20 1(d)(2) of the Education
               Code, he or she may reassign a trustee’s relative to fill a departmental
               chair position.      The board is not authorized to act on the
               reassignment, and board members are not, therefore, public officials
               for purposes of chapter 573, Government Code, with respect to the
               reassignment.

                                               Very tnjly yours,




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
