   OFFICE   OF THE    ATTORNFY   GENERAL   . STATE   OF   TEXAS

   JOHN     CORNYN




                                                     August 282002



The Honorable Ken Armbrister                                Opinion No. JC-0546
Chair, Committee on Criminal Justice
Texas State Senate                                          Re: Whether the son of a city council member of the
P.O. Box 12068                                              City of Azle, Texas may be promoted to a higher
Austin, Texas 78711                                         position in the Azle Police Department (RQ-0520-JC)


Dear Senator Armbrister:

        You have asked this office to consider the interaction of certain provisions of the charter of
the City of Azle, Texas and chapter 573 of the Texas Government Code’s nepotism provision. This
office does not ordinarily construe charter provisions in the opinions process. See Tex. Att’y Gen.
Op. Nos. JC-0035 (1999) at 2, JM-846 (1988) at 1; Tex. Att’y Gen. LO-94-008, at 2 n.1. However,
in this case the question presented may be answered by reference to the provisions of section
573.062 of the Government Code as well as to prior opinions of this office interpreting that section.

        As we understand the facts of the situation giving rise to this request, a lieutenant of the Azle
Police Department who has been continuously employed in that position since 1997 was promoted
by the Azle city manager to the position of chief of police in October 2001, some five months after
his mother was elected to the Azle City Council.’ Questions have arisen as to the propriety of this
appointment given that section 11.03 of the charter provides:

                     No person related within the second degree by affinity, or within the
                     third degree by consanguinity to any elected officer of the City, or to
                     the City Manager, shall be appointed to any office, position[,] or
                     clerkship or other service of the City.

AZLE, TEX., CITY CHARTER 0           11.03.*




          ISee Request Letter from Honorable Ken Armbrister, Chair, Committee on Criminal Justice, Texas State
Senate, to Susan Denmon Gusky, Chair, Opinion Committee, Office of the Attorney General (Mar. 6, 2002)
and attached Letter Brief from Omniah Z. Ebeid, Texas Municipal League, to Linda Arrington, Azle City Council
(Feb. 7,2002) (on file with Opinion Committee).

        2See id.
The Honorable Ken Armbrister         - Page 2     (JC-0546)




         The son of an elected officer is related to that officer in the first degree of consanguinity. See
TEX. GOV’T CODE ANN. 8 573.023 (Vernon            1994). Taken by itself, the plain language of section
11.03 would prohibit the appointment of the city council member’s son to the position of police
chief. Section 3.08 of the charter specifically forbids members of the council to direct appointments
to office by the city manager. See AZLE, TEX., CITY CHARTER5 3.08 (“Neither the City Council nor
any of its members shall direct the appointment of any person to office by the City Manager or by
any of his subordinates.“). 3 Accordingly, section 11.03, as a nepotism provision, is stricter than
section 573.041 of the Texas Government Code, which forbids public officials themselves from
making appointments within the prohibited degree. See TEX.GOV’T CODEANN. 8 573.041 (Vernon
 1994).

         In interpreting a similar municipal charter nepotism provision, the Attorney General
determined in 1993 that a home-rule city’s charter could contain nepotism provisions more rigorous
than those of state law. See Tex. Att’y Gen. LO-93-30, at 1. Letter Opinion 93-30 interpreted
language in the charter of the City of Freeport, Texas identical to that in section 11.03. In that
opinion, we found that the charter provision, though stricter than was required by what was then
article 5996a, section 1(a) of the Revised Civil Statutes and is now section 573.041 of the
Government Code, nevertheless was not in conflict with that statute: “[W]e do not believe that the
legislature intended to prevent a home-rule city from enacting a nepotism policy stricter than the
state nepotism statute, provided that the home-rule city’s policy is consistent with the policy against
favoritism underlying the state nepotism law.” Tex. Att’y Gen. LO-93-30, at 2.

        However, the appointment in Letter Opinion 93-30 was of a person who did not have prior
continuous service as a police officer in the city. See id. at 2 n. 1. The question there was the hiring
“as a police officer [of] a son of a veteran city council member.” Id. at 1. The question here is the
promotion of a veteran city police officer whose mother is a recently elected city council member.

        Because of this difference, the “grandfather” or “continuous service” exception to the state
nepotism law, which was not relevant in Letter Opinion 93-30, is of importance here. That provision
is now section 573.062 of the Government Code and reads in relevant part:

                       (a) A nepotism prohibition prescribed by Section 573.041 or by
                   a municipaZ charter or ordinance does not apply to an appointment,
                   confirmation of an appointment, or vote for an appointment or
                   confirmation of an appointment of an individual to a position if:

                            (1) the individual is employed in the position immediately
                   before the election or appointment of the public official to whom the
                   individual is related in a prohibited degree; and




        3See id.
The Honorable Ken Armbrister         - Page 3     (JC-0546)




                           (2) that prior employment   of the individual is continuous   for
               at least:




                           (B) six months, if the public official is elected at an
               election other than the general election for state and county officers;




                   (b) If, under Subsection (a), an individual continues in a position,
               the public official to whom the individual is related in a prohibited
               degree may not participate in any deliberation or voting on the
               appointment, reappointment,      confirmation of the appointment or
               reappointment,     employment,    reemployment,     change in status,
               compensation, or dismissal of the individual if that action applies
               only to the individual and is not taken regarding a bona fide class or
               category of employees.

TEX. GOV’T CODE ANN. 8 573.062 (Vernon 1994) (emphasis added).               See Tex. Att’y Gen. Op. No.
JC-0193 (2000) at 3-4 (defining “change in status”).

       As this office interpreted the language of section 573.062(b) in Attorney General Opinion
JC-0185:

               An individual who has been continuously employed in [a] position
               for the requisite duration may not only retain his or her position but
               may be the subject of an action affecting the employment, such as a
               promotion or raise, if “the public official to whom the individual is
               related in a prohibited degree” does not participate in any discussion
               or vote regarding the individual’s status, unless the decision concerns
               “a bona fide class or category of employees.”

Tex. Att’y Gen. Op. No. JC-0185 (2000) at 3 (citing TEX. GOV’T CODEANN. 8 573.062(b) (Vernon
1994)). As we further explained the matter in Attorney General Opinion JC-0 193, “a public official
may not participate in any action affecting the employment of a relative within a prohibited degree
that requires the official to make a subjective decision about the employee.” Tex. Att’y Gen. Op.
No. JC-0193 (2000) at 4.

         In this instance the lieutenant who has been promoted to chief of police had been serving as
a lieutenant for nearly four years continuously at the time of his mother’s election to the city
The Honorable Ken Armbrister            - Page 4      (JC-0546)




council.4 Consequently, the strictures of section 11.03 of the Azle City Charter are inapplicable.
See TEX. GOV’T CODE ANN. 9 573.062 (Vernon 1994).

        It has been suggested in a letter brief attached to the opinion request letter that section
573.062(b) does not preempt the Azle City Charter? However, the language of section 573.062 is
clear and specific in providing that “a municipal charter or ordinance” provision such as section
11.03 “does not apply” in such a situation as this. TEX.GOV’T CODEANN. 8 573.062 (Vernon 1994)
(emphasis added); see Dallas Merchs. and Concessionaires v. City of Dallas, 852 S.W.2d 489,491
(Tex. 1993) (legislative preemption of area usually within powers of home-rule city requires
“unmistakable clarity”).

         In accordance with the reasoning of Attorney General Opinion JC-0185, section 573.062(b)
of the Government Code permits the lieutenant to be “the subject of an action affecting [his]
employment, such as a promotion or raise,” Tex. Att’y Gen. Op. No. JC-0185 (2000) at 3, so long
as his mother does not participate in such an action when doing so would require her “to make a
subjective decision about” him. Tex. Att’y Gen. Op. No. JC-0193 (2000) at 4. In this case, as we
have noted above, section 3.08 of the Azle City Charter specifically forbade her participation in the
decision to promote her son. Assuming that section 3.08 was not violated, the promotion of a
lieutenant with four years of continuous service on the Azle Police Department to chief of that
department is permissible under section 573.062 of the Government Code even though the
lieutenant’s mother is a member of the Azle City Council.




         4See id.


         ‘See Request Letter, supra note 1, and attached Letter Brief from Betsy Elam, Taylor, Olson, Adkins, Sralla,
Elam, L.L.P., to Jerry Guillory, Azle City Manager (Nov. 7,200l) (on file with Opinion Committee).
The Honorable Ken Artnbrister      - Page 5   (JC-()546)




                                       SUMMARY

                       In accordance with section 573.062(b) of the Government
               Code, the promotion of a lieutenant on the Azle Police Department
               with four years of continuous service to chief of that department is
               permissible even though the lieutenant’s mother has become a
               member of the Azle City Council, so long as she does not participate
               in any deliberation or voting on that promotion.




                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Jim Tourtelott
Assistant Attorney General, Opinion Committee
