     OFFICE OF THE ATTORNEY GENERAL. STATE OF TEXAS

     JOHN      CORNYN




                                               February 12,200l



The Honorable Laura Garza Jimenez                            Opinion No. JC-0336
Nueces County Attorney
901 Leopard, Room 207                                        Re: Whether a police chief who has authority
Corpus Christi, Texas 78401-3680                             under a collective-bargaining    agreement to
                                                             finally select the senior officer who will be
                                                             promoted to lieutenant may promote his
                                                             nephew to a vacant lieutenant position, and
                                                             related questions (RQ-0283-JC)


Dear Ms. Jimenez:

         A public official may not promote his or her nephew to a position compensated from public
funds if promotion requires the official to finally select the person who will fill the position. See
TEX. GOV’T CODE ANN. 8 573.041 (Vernon 1994). You ask whether a police chief may promote his
nephew to the position of lieutenant, where the promotion requires the chief to select among three
qualified persons.’ He may not.

         If the police chief may not promote his nephew to lieutenant, you ask whether the collective-
bargaining agreement may be amended to provide that where a close relative of the police chief is
eligible to be promoted an official other than the chief selects from among the qualified personnel.
See Request Letter, note 1, at 1. The collective-bargaining    agreement may be so amended, but the
parties to the collective-bargaining    agreement also should consider amending the agreement to
transfer additional authority over the close relative to another official. You finally ask how, if the
nephew may be promoted, initial duties may be assigned to him in light of Attorney General Opinion
JC-0193. Id.; see Tex. Att’y Gen. Op. No. JC-0193 (2000). We conclude that the chiefmay assign
any duties he deems necessary to accomplish the police department’s duties.

         This office will not construe a particular collective-bargaining agreement. See Tex. Att’y
Gen. Op. Nos. JC-193 (2000) at 5; JC-0165 (2000) at 1. We look only at how the statutory nepotism
prohibitions apply in the circumstances you describe.

         For purposes of the anti-nepotism statutes, a police chief who has, under a collective-
bargaining agreement, final authority to appoint, reward, discipline, or demote employees is a public



           ‘See Letter from Honorable Laura Garza JimCnez, Nueces County Attorney, to Honorable John Comyn, Texas
Attorney    General (Sept. 8,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable      Laura Garza Jimenez        - Page 2          (JC-0336)




official. See Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658, 659 (Tex. Civ.
App.-Eastland      1981, no writ) (stating that public official has nondelegable final authority to
appoint); Tex. Att’y Gen. Op. No. JC-0193 (2000) at 3 (stating that City of Corpus Christi police
chief is public official under chapter 573, Government Code). Under section 573.062 of the
Government Code, a sole officeholder who has final authority to appoint, reappoint, confirm,
employ, reemploy, change the status or compensation of, or dismiss personnel may not take any
action with respect to a close relative, including a nephew, who has been continuously employed by
the office for a certain period of time. See TEX. GOV’T CODE ANN. 9 573.062(a), (b) (Vernon 1994);
see also id. 55 573.002, -022, .023 (defining prohibited degree of consanguine relationships); Cain
v. State, 855 S.W.2d 714,718 (Tex. Crim. App. 1993) (en bane) (holding that nepotism statute is not
unconstitutional when applied to “sole officeholders”). A public official includes an officer of any
political subdivision of this state, including a municipality. TEX. GOV’TCODE ANN. 5 573 .OO1(3)(A)
(Vernon 1994).

         In Attorney General Opinion JC-0193 this office concluded that the Chief of Police for the
City of Corpus Christi could not, by transferring his nephew laterally to another division, change the
nephew’s employment status with the City of Corpus Christi’s police department if the change of
status requires the Chief to exercise discretion. Tex. Att’y Gen. Op. No. JC-0193 (2000) at 1. That
opinion examines whether a reassignment that did not involve a salary change was a “change of
status” for the purposes of section 573.062(b) of the Government Code. Id. at 3. You do not raise
that issue again.

         Having received Attorney General Opinion JC-0193, you now raise supplementary issues
based on similar, though not identical, facts. You explain: “The Chief of Police for the City of
Corpus Christi has a nephew employed as a Senior Officer within the Police Department. . . .
Through a competitive process the nephew ranks number two on the promotional eligibility list for
lieutenant in the department .” Request Letter, supra note 1, at 1. You list the ranks in the police
department “in declining order,” as “chief, assistant chief, commander, captain, lieutenant, senior
officer, and officer.” Id. at 2.

         The police department at issue is subject to a collective-bargaining  agreement. See Tex.
Att’y Gen. Op. No. JC-0193 (2000) at 2 (quoting Letter from Honorable Carl E. Lewis, Nueces
County Attorney, to Honorable John Comyn, Texas Attorney General (July 23,1999) (on file with
Opinion Committee); Agreement Between the City of Corpus Christi and the Corpus Christi Police
Officer’s Association (Aug. 1, 1998 - July 3 1,2000).* Under the collective-bargaining   agreement,
promotions to lieutenant must follow a specific procedure:

                  The candidates take a written exam. The top 15 continue to an
                  assessment center. An eligibility list is estabhshed based on the
                  assessment center weighted at 60% and the written exam at 40%,


        2You state that the collective-bargaining agreement “remains in effect . . . because it has not been superseded
bY a new agreement.”   See Request Letter, supra note 1, at 2.
The Honorable    Laura Garza Jimenez     - Page 3       (JC-0336)




                with up to 10 extra points for years of service. . . . Upon a lieutenant
                vacancy, the civil service commission certifies the three top names on
                the list to the chief. The chief may select any of the three. Appeal
                may be made by a rejected candidate to an arbitrator. A person
                promoted may be demoted within 365 days of promotion at the
                discretion of the chief without appeal to the commission.

Id.

         The City of Corpus Christi has adopted chapter 143 of the Local Government Code, under
which a municipality may implement a civil-service system for fire fighters and police officers. See
TEX. Lot. GOV’T CODE ANN. 8 4 143.001, .002, .004, -006 (Vernon 1999); Request Letter, supra note
1, at 2. Although chapter 143 establishes a procedure for promoting employees, see id. 9 143.036,
a local collective-bargaining    contract may prevail over the statutory procedure if the contract
specifically states that it does, see id. § 174.006(a); Gomez v. Brownsville, 976 S.W.2d 291, 293
(Tex. App.-Corpus Christi 1998, pet. denied). The Agreement between the City of Corpus Christi
and the Corpus Christi Police Officer’s Association explicitly states that, “[t]o the extent” the
collectively bargained promotion procedures “alter any provision of Chapter 143” of the Local
Government Code, “Chapter 143 is so altered.” Agreement Between the City of Corpus Christi and
the Corpus Christi Police Officer’s Association art. XIII(F), Aug. 1, 1998 - July 3 1,200O.

        Because the chief exercises discretion to select from a list of three qualified candidates, we
conclude, consistently with Attorney General Opinion JC-0193, that the chief may not promote his
nephew to lieutenant. See Tex. Att’y Gen. Op. No. JC-0193 (2000) at 1 (“We conclude that section
573.062(b) of the Government Code prohibits the Chiefs final approval if the approval requires an
exercise of the Chiefs discretion.“). A promotion is, as a matter of law, a “change in status” under
section 573.062(b). See id. at 3 (discussing dictionary definitions of “change of status”). And,
under the current collective-bargaining   agreement, the chief is the final decision-maker.  In answer
to your first question, therefore, the nephew may not be promoted to lieutenant.

          In answer to your second question, we conclude that the collective-bargaining agreement may
be amended so that the nephew may be promoted, but we urge caution in making any such
amendments.      Of course, the collective-bargaining    agreement may not be amended to permit the
police chief to violate the law by, for example, appointing a close relative. As Attorney General
Opinion JC-0193 suggests, because the collective-bargaining      agreement at issue assigns to the police
chief final authority to promote a senior officer to lieutenant, the chief must abstain from promoting
a relative who is a senior officer where the promotion permits the chief to exercise discretion. Tex.
Att’y Gen. Op. No. JC-0193 (2000) at 3. While the current police chief holds final authority to
promote an employee to fill a vacancy, his nephew must remain in the same position, at the same
pay, unless the chief takes an action affecting a bona fide class of employees, and the nephew is a
member of the class. See TEX. GOV’T CODE ANN. 5 573.062(b) (Vernon 1994); Cain, 855 S.W.2d
at 718 (rejecting court of appeals’ holding).
The Honorable    Laura Garza Jimenez     - Page 4       (JC-0336)




         If the collective-bargaining agreement is amended to take from the chief final authority to
decide promotions where the chiefs close relative is among the list of those qualified, see Request
Letter, supra note 1, at 1, and to give final authority in that instance to another official, such as the
city manager, then the anti-nepotism statute would not apply. In that case, the close relative may be
promoted. Because you describe only this amendment, we do not consider whether the collective-
bargaining agreement may be amended in any other way that would permit the nephew to be
promoted.

         As you suggest, the collective-bargaining  agreement itself must delegate final authority to
promote-a     police chiefs voluntary delegation of the decision to another party does not avoid the
application of the anti-nepotism prohibitions. See id. These prohibitions apply to any official who
may exercise control over an employment decision. See Tex. Att’y Gen. Op. No. DM-2 (1991) at
1. So long as the collective-bargaining    agreement confers upon the police chief final authority to
promote senior officers to lieutenant, the police chiefs close relative may not be promoted.

         In the event that the chiefs close relative may be promoted following amendments to the
collective-bargaining    agreement, the parties to the collective-bargaining agreement may be wise to
amend other sections as well. In particular, you state that a senior officer who is promoted to
lieutenant “may be demoted within 365 days of promotion at the discretion of the chief without
appeal to the” civil-service commission. Request Letter, supra note 1, at 2. But the chief may not
demote his nephew without violating section 573.062 of the Government Code. See TEX. GOV’T
CODE ANN. 8 573.062(b) (Vernon 1994). Unless the collective-bargaining           agreement is amended
to provide for demoting the close relative within a probationary period, the nephew, once promoted
to lieutenant by the city manager or other official, may not be demoted as may other newly promoted
lieutenants.

        You ask finally how, if the chiefs nephew may be promoted under either your first question
or your second question, the nephew initially may be assigned duties. “Would he have to be given
the same assignment as the lieutenant who vacated the position being filled?” Request Letter, supra
note 1, at 1. We conclude that the chief generally may assign the newly promoted nephew any duties
he deems necessary to accomplishing the department’s functions. A change of assignment must not,
however, constitute a change in status as a matter of fact.

        The chief may allocate and reallocate duties among his related and non-related employees
as he wishes, so long as changed assignments do not change the status of a related employee.
Section 573.062 of the Government Code contemplates that a public official may retain as an
employee a close relative who has been continuously employed in a certain position for a period of
time before the public official was appointed or elected to office-an employee whom the official
could not hire under the anti-nepotism prohibition. See TEX. GOV’T CODE ANN. § 5 573.062(a), .041
(Vernon 1994). The legislature envisioned, therefore, that a public official and a related,
continuously employed employee would have a way to work together, so that the public official
could assign duties as necessary, without changing the related employee’s status under section
573.062(b). (We assume that a collective-bargaining    agreement may limit the chiefs authority to
The Honorable   Laura Garza Jimenez    - Page 5       (JC-0336)




assign tasks, but we do not consider whether the collective-bargaining agreement that you have sent
does so.) Any other conclusion would prove unworkable for the public official and the office he or
she serves.

         Whether a particular change in assignment constitutes a change in status for the purposes of
the anti-nepotism statute is a question of fact that cannot be resolved in the opinion process. See
Tex. Att’y Gen. Op. Nos. JC-0298 (2000) at 1 (stating that we cannot resolve fact dispute); JC-0020
(1999) at 2 (investigating and resolving fact questions “cannot be done in the opinion process”);
DM-98 (1992) at 3 (“[Qluestions of fact . . . cannot be resolved in the opinion process.“).

         As Attorney General Opinion JC- 193 indicates, a change in status “varie[s] the conditions”
of an employee’s employment. See Tex. Att’y Gen. Op. No. JC-0193 (2000) at 3-4. We recognize
that the opinion unfortunately suggests that a “reassignment” is encompassed within “change of
status”:   “In our opinion, the phrase ‘change in status’ includes a reassignment within an
organization, whether or not a change in salary level accompanies the reassignment.” Id. at 3. The
reassignments at issue there, however, involved interdepartmental transfers, complete with changes
from uniformed status to plain-clothes status, among other things. See id. at 2. An assignment of
duties within a department need not constitute a change of status if the changes are not of the same
magnitude as those described in Attorney General Opinion JC-0193. See id. at 3-4.
 The Honorable   Laura Garza Jimenez      - Page 6        (JC-0336)




                                          SUMMARY

                          A police chief who, under a collective-bargaining    agreement,
                 exercises discretion to finally select from a list of three qualified
                 senior officers one person to promote to lieutenant, may not select his
                 nephew. See TEX. GOV’T CODE ANN. 5 573.062(b) (Vernon 1994).
                 A collective-bargaining    agreement may be amended to take from the
                 chief final authority to decide promotions where the chiefs close
                 relative is among the list of those qualified and to give final authority
                 in that instance to another city official. If a collective-bargaining
                 agreement is so amended, the nephew may be promoted by the other
                 official to lieutenant. The police chief may allocate duties among
                 lieutenants, including a newly promoted nephew, as he or she deems
                 necessary to accomplish the functions of the office. A changed
                 assignment may not, as a matter of fact, change the related
                 employee’s status.




                                                 Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

*CLARK KENT ERVIN
 Deputy Attorney General - General Counsel

 SUSAN D. GUSKY
 Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee
