                                           The Attorney                           General of Texas
                                                                           July        25,        1983

JIM MATTOX
Attorney General


                                        Honorable   Bob Bush                                               Opinion     No. JM-45
S”preme       Co”r!    Building
P, 0. BOX 12548                         Chairman
A”S11”.     TX. 78711- 2548             Committee    on Judiciary                                          Re:     Whether    an outside     auditor
5,2,475-2501                            Texas House of Representatives                                     who contracts        to perform      for     a
Teiex     9101674~1367                  P. 0. Box 2910                                                     school    district      is   subject       to
Telecopier       5121475-0266
                                        Austin,   Texas     78769                                          article      5996a,     V.T.C.S.,        the
                                                                                                           nepotism     statute
1607 Main St.. suite     1400
Dallas.   TX~ 75201-4709                Dear   Representative             Bush:
2141742-8944

                                                 You have       requested        a construction         of    article       5996a.      V.T.C.S.,
4824 Alberta       Ave.. Suite    160   which      deals     with    "nepotism."         The facts        are     as follows:          in April,
E, Paso. TX.       79905.2793           1982,      an individual         was elected      as a trustee         of an independent             school
9151533.3484                            district.          This     trustee       is   a first       cousin      of    a certified           public
                                        accountant          (CPA)      who      serves    as     the     school       district's         auditor.
                                        Accordfng        to a letter       from the superintendent              of this      school     district,
                                        this       CPA "was        first       awarded     a    contract        to    perform        the     School
                                        District's        annual     audit     in 1972 and he has served              continuously         in this
                                        capacity       for    the past        eleven    (11)    years."        This     letter      also     states
                                        that     the trustee       has no financial          interest       in the audit         firm    in which
806 Broadway.        Sutfe 312
                                        the CPA is employed.
Lubbock.     TX,    79401-3479
8061747-5238
                                               Article        5996a     provides             in    part:

4309 N. Tenth.     swte    8                                 No officer.           . . any.        . . school            district.        . .
McAllen.     TX. 78501.1685
                                                         shall      appoint,         or      vote       for,       or     confirm        the
5121682-4547
                                                         appointment          to    any office,             position,         clerkship,
                                                         employment         or duty,       of any person              related        within
200 Main Plaza. suite   400                              the second         degree     by affinity            or within         the third
San Anlonm     TX~ 782052797                             degree        by      c"nsang"inity               to      the       person        so
5121225-4191
                                                         appointing        or so voting,          or to any other               member of
                                                         any     such      board.      . .     of      which        such      person       so
A” Equal Opporlullltyl                                   appointing         or voting         may be a member,                   when the
Afllrmafive AC,,O”Empluyer                               salary,      fees,      "t compensation             of such appointee             is
                                                         to be paid         for,    directly        or indirectly,             out of or
                                                         from public         funds    or fees        of office         of any kind or
                                                         character          whatsoever;           provided,             that       nothing
                                                         herein          contained.        . .          shall          prevent           the
                                                         appointment,          voting       for,      or confirmation               of   any
                                                         person     who shall         have      been      continuously           employed
                                                         in      any       such       office,            position,            clerkship,




                                                                                  p.     196
Honorable        Bob    Bush     -   Page     2    (JM-45)




                 employment      or duty      for    a period      of two (2) years
                 prior     to    the    election       or     appointment     of  the
                 officer      or   member       appointing,         voting  for,    or
                 confirming      the appointment,          or to the election       or
                 appointment       of   the    officer      or member related       to
                 such employee        in the prohibited          degree.   (Emphasis
                 added).

You have        asked whether,   in the                situation   outlined     above, any violation
of article         5996a has occurred.                   We assume that      the CPA in question                        is
currently        serving  as the school                 district’s    auditor.

        In the aforementioned                    letter,       the superintendent                 indicated          that
one of       his     concerns        is    whether,         under       article        5996a,       it    makes        any
difference        that      the CPA is an “independent                      contractor”           rather       than an
“employee”        of the school            district.          We think        not.        In our opinion,              the
legislature,             in      enacting            this       statute,           chose         the       extremely
comprehensive           words     “office,         position,         clerkship,          employment         or duty”
in     an    effort        to     cover        every       conceivable           situation            in     which         a
governmental          body might          hire      someone       to perform          some service             for     it.
It sought,          in other        words,        to make it          clear     that       nepotism        questions
should       not     turn      on     technical          distinctions           between         “employee”            and
“independent           contractor”;             instead,        the     relevant          question        should         be
whether       the governmental              body      employed        the individual             in question             to
perform       some service           for     it.      Thus,      even     assuming         arguendo        that      this
CPA is an independent                 contractor,          this     employment          situation        is covered
by article         5996a,      because         the CPA (1)          is related           to a school            trustee
within      the prohibited             degree;         (2)    was hired,         i.e.,       “appointed”            by a
school      board       containing          this      trustee        to    perform         a service          for      the
school     district;          and (3)       occupies         a “position”           or “employment”                or is
performing          a “duty”          for      the     district         within       the      meaning        of      this
statute.

         Recause      this   employment        relationship        is    governed       by   article
5996a,      the CPA may, while        his   relative      is serving      on the school        board,
continue       to be hired       by that      school     board    to perform        as the school
district’s          auditor    only     if    the     two-years’       continuous         employment
proviso       in article      5996a     is   applicable.         He may be reemployed,               in
other      words,     only  if    he was “continuously             employed”       by the      school
district       for    two years     prior    to the date         on which      his    first    cousin
officially         became   a school       trustee.         -See  Attorney      General      Opinion
M-857 (1971).

        In his    letter,      the superintendent              advises   that     the CPA conducts
the    annual    audit     for    the    school      district.         We have      been   unable     to
locate    a prior      opinion     dealing      wf,th a situation          quite     like  this   one,
in which      the question        is whether        the “continuous          employment”      proviso
can apply      where sn individual           is hired       to perform      a service     during    one
portion     of    each    year     rather      than     throughout       the     entire   year.       We




                                                          p.    197
Honorable       Bob    Bush    -   Page   3    (JM-45)




conclude,     however,       that   the     proviso       applies      in this     instance    if,
during    the two years          immediately      preceding       the qualification         of the
CPA’s first     cousin     as a trustee,       the CPA was continously            in the employ
of the school       district      as its     auditor,       regardless     of whether       he was
actually    rendering      auditing    services       for   the district.

         Webster’s       New International              Dictionary,       2nd    Edition,       defines
“continuous”          as “without        break,      cessation,        or interruption;         without
intervening         space     or time.”        In Attorney        General    Letter      Advisory      No.
151     (1978))      which      concluded       that     the    express    refusal       by a school
district        to    rehire      a teacher’s          aide     before    her    current       term     of
employment        ended constituted           a break     in her employment         for purposes        of
the two-year         proviso,      this    office     quoted     the following        statement      from
Cox v. Brown,          50 S.W.2d      763,    764 (MO. App. 1932):

                Continuously         in.       .  .    employ      does    not      mean
                continuously       in.   .      . service.       To be employed        in
                anything     means not          only   the act    of doing     it,   but
                also     to  be   engaged           to  do   it,    or  to  be     under
                contract     or orders         to do it.

       These      authorities      establish        that     an   individual        who      performs
services      on a seasonal         or   periodic       basis    may be protected              by the
two-years’       continuous      service      proviso.        For    the    proviso       to    apply,
however,     the individual       must have been “employed”               by, &,           “engaged”
by or operating          under   a contract       with,     the governmental          entity       that
hired    him for     the entire     two years       immediately       preceding      the election
or appointment         of his   relative      (within      the prohibited         degree)       to the
governing      board    of that entity.

        If,     during      the      entire        730      days      immediately         preceding          the
qualification           of    his        first      cousin        as    trustee,         this      CPA       was
continuously          under      contract         with     the     school      district         to    perform
auditing       services      for     it,       we believe        that    no violation           of    article
5996a     occurred      when the school            board     thereafter       continued        to reemploy
him as its       auditor.        The fact        that    the auditor         was hired       to perform         a
periodic      service      does    not mean that            he cannot       be deemed        to have been
“continuously         employed”       by the school          district       as its     auditor      for    that
two-year       period.       Of course,            the    question       of    whether       the     CPA was
employed      by the school         district        for    the required         two year       period      is a
fact    question      which    cannot        be resolved       in the opinion          process.

                                               SUMMARY

                     No     viol~ation        of     article      5996a.    V.T.C.S.,
                occurred       where    a CPA who had served           as the school
                district’s        auditor       since      1972 was reemployed        in
                that     capacity      after     his    first   cousin   was elected
                to the school          board,      if the CPA was “continuously




                                                    p.    198
honorable    Bob   Bush   -    Page      4   (33-45)




             employed"  by the    school               district         as its     auditor
             for two consecutive     years             prior      to    the election       of
             his cousin  as trustee.




                                                             JIM          MATTOX
                                                             Attorney      General      of   Texas

TOM GREEN
First Assistant      Attorney         General

DAVID R.    RICHARDS
Executive    Assistant        Attorney       General

Prepared    by Jon Bible
Assistant    Attorney  General

APPROVED:
OPINION COMMITTEE

Rick Gilpin,   Acting         Chairman
Jon Bible
David Brooks
Colin  Carl
Jim Moellinger
Nancy Sutton
Bruce Youngblood




                                                  p.   199
