   OFFICE   OF THE ATTORNEY   GENERAL   . STATE OF TEXAS

   JOHN     CORNYN




                                              September 20,2002



The Honorable Frank Madla                                    Opinion No. JC-0558
Chair, Intergovernmental  Relations Committee
Texas State Senate                                           Re: Whether a provision of the nepotism
P.O. Box 12068                                               statute prohibits a city commissioner from
Austin, Texas 787 1 l-2068                                   deliberating on a merit salary increase for his
                                                             sibling, and related question (RQ-0532-JC)


Dear Senator Madla:

        You request an opinion regarding the application of a provision of the nepotism statute,
chapter 573 of the Government Code, to a member of the governing body of a home-rule city. See
TEX. GOV’T CODE ANN. ch. 573 (Vernon 1994 & Supp. 2002).                  You ask whether a city
commissioner violates section 573.062(b) ofthe Government Code by participating in a deliberation
regarding a merit salary increase for the commissioner’s sibling, a long-time city employee.’ See
TEX. GOV’T CODE ANN. 8 573.062(b) (Vernon 1994) (pertaining to continuous employment).        You
also ask whether the other city commissioners would violate any criminal statutes if they vote to
approve the salary increase after involvement in the earlier nepotistic deliberation regarding the
salary increase. See Request Letter, supra note 1, at 1.

        We conclude that section 573.062(b) of the Government Code prohibits a city commissioner
from participating in a deliberation regarding a merit salary increase for his sibling; and if the city
commissioner participates in such a deliberation, he may be found to have violated the statute.
Additionally, we conclude that other city commissioners would not violate section 573.084 of the
Government Code, which makes a violation of section 573.062(b) a criminal offense, by merely
voting on a merit salary increase for a fellow city commissioner’s sibling even after they were
involved in the deliberation in which the fellow city commissioner participated. We cannot and do
not resolve whether or not any person has actually violated section 573.062(b) because such a
determination would require the investigation and resolution of fact questions, which cannot be done
in the opinion process. See Tex. Att’y Gen. Op. Nos. JC-0307 (2000) at 1; JC-0184 (2000) at 4.

       To provide a legal context for your questions, we review the relevant provisions of chapter
573. Section 573.041 of the Government Code provides that a public official “may not appoint,
confirm the appointment of, vote for the appointment or confirmation of the appointment of an


           ‘See Letter from the Honorable Frank Madla, Chair, Intergovernmental Relations Committee, Texas State
Senate, to the Honorable John Cornyn, Texas Attorney General (Apr. 3,2002) at 1 (on file with Opinion Committee)
[hereinafter Request Letter].
The Honorable Frank Madla - Page 2               (JC-0558)




individual to a position” compensated from public funds if the individual is related to the public
official or to another member of the appointing board “within the third degree by consanguinity or
within the second degree by affinity.” TEX. GOV’T CODEANN. $5 573.002, .041 (Vernon 1994).
Siblings are related to each other in the second degree by consanguinity, see id. $5 573.022,
.023(c)(2), and are thus within the degree of relationship affected by section 573.041, see id.
5 573.041.

          The section 573.041 nepotism prohibition does not apply to a relative continuously employed
in a particular position for a specified period of time immediately before the election or appointment
of the public official to whom the employee is related. See id. 0 573.062(a). The continuously
employed relative may retain his or her position. See id.; see also Tex. Att’y Gen. Op. No. DM-2
(1991) at 3 (city council member’s brother would retain job if he served for requisite time before
election or appointment); Tex. Att’y Gen. LO-95-015, at 2 (mayor’s wife may retain position in
which she had been employed before her husband’s election). But if an individual continues in a
position under this exception, the public official to whom the individual is related in the 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 @hat action applies only to the individual
                 and is not taken regarding a bona fide class or category of
                 employees.

TEX. GOV’T CODEANN. 4 573.062(b) (Vernon 1994) (emphasis added). This provision is “intended
to preclude a public official from participating in all employment actions that affect the official’s
relative, with the exception of those affecting a ‘bona fide class’ of employees.” Tex. Att’y Gen. Op.
No. JC-0193 (2000) at 4. A city commission, for example, may approve a change in the employment
status and compensation of a mayor’s wife continuously employed by the city prior to the mayor’s
election, but the mayor may not participate in any deliberation or voting on either matter if the action
applies only to his wife. See Tex. Att’y Gen. LO-95-015, at 2.

       Finally, a violation of section 573.062(b) is enforceable by removal from office. See TEX.
GOV’T CODE ANN. 8 573.081 (Vernon 1994). It is also a criminal offense.     Section 573.084 of the
Government Code provides that:

                     (a) An individual   commits an offense involving       official
                 misconduct if the individual violates Subchapter C [prohibiting
                 appointment or confirmation of relative] or Section 573.062(b) or
                 573.083 [prohibiting payment to ineligible individuals].

                      (b) An offense under this section is a misdemeanor   punishable by
                 a fine not less than $100 or more than $1,000.

Id. 8 573.084.
The Honorable      Frank Madla - Page 3                 (JC-0558)




         With this statutory background, we turn to your request.       You inform us that the city
commission of a home-rule city approved an across-the-board salary raise for all city employees.
See Request Letter, supra note 1, at 1. Subsequently, the city commission met to discuss, among
other items, merit salary increases for selected city employees. See id. At this meeting, the city
commission convened in a closed session to discuss the merit raises with the city manager, who is
charged with evaluating employee performance and making recommendations for salary increases.
See id. One of the city employees “up for merit raise consideration, but who did m receive a
recommendation” from the city manager is a sibling of one of the city commissioners who has been
employed by the city as a department head since 1979. Id. In the closed session, that city
commissioner participated in the discussion with respect to the “other employees under consideration
for merit raises.” Id. He also participated in the discussion regarding the merit raise for his sibling:

                  Many times, the commissioner displayed anger towards the other
                  members, as well as the city manager, when they discussed not giving
                  his sibling a raise. The commissioner repeatedly told the city manger
                  that he, the city manager, could “break the tie” if need be. The
                  commissioner also mentioned that his sibling had received other
                  raises and that the commission should vote the same on this occasion.

Id.    After convening in an open session, the city commission           voted against giving the
commissioner’s    sibling a merit salary increase, although the commissioner did not vote “on the
denial of the salary increase.” Id. at 2. You are concerned only with the merit raise portion of the
deliberation involving the city commissioner’s sibling, not the across-the-board salary raise.

         You first ask: “Is it a violation of Section 573.062(b), Government Code, for a city
commissioner to deliberate, participate, and display a preference regarding the consideration of a
merit salary increase for a sibling in a closed session of a city’s Board of Commissioners?” Id. at
1. Because you ask about section 573.062(b), we assume that the city commissioner’s sibling has
been continuously employed for the requisite time period before the city commissioner’s election
to the city commission. See TEX. GOV’T CODE ANN. 8 573.062(a) (Vernon 1994).

         We conclude that section 573.062(b) prohibits a city commissioner from participating in a
deliberation regarding a merit salary increase for his sibling; and if the city commissioner participates
in such a deliberation, he may be found to have violated the statute.2 As a “public official,” a city
commissioner must not only abstain from voting on the compensation of a sibling employed by the
city, but must also abstain from participating in any “deliberation” regarding the compensation
unless the deliberation relates to a “bona fide class or category” of employees. See id. 8 573.062(b);
see also Tex. Att’y Gen. Op. No. JC-0193 (2000) at 3; Tex. Att’y Gen. LO-95-015, at 2.

       First, a city commissioner is a “public official” for the purposes of chapter 573 of the
Government Code and section 573.062(b). See TEX. GOV’TCODEANN. 8 573.001(3) (Vernon 1994)


          2This office does not investigate or resolve fact questions. See, e.g., Tex. Att’y Gen. Op. Nos. JC-0336 (2001)
at 4; JC-0298 (2000) at 1; JC-0020 (1999) at 2; DM-98 (1992) at 3.
The Honorable Frank Madla - Page 4            (JC-0558)




(“public official” includes an officer or member of a board ofmunicipality). As a member of the city
commission, a city commissioner exercises control over employment decisions. See Tex. Att’y Gen.
Op. No. DM-46 (1991) (applicability of nepotism statute turns on whether official may exercise
control of employment decisions).        You state that “[wlhile the city manager can evaluate the
performance of department heads, such as the commissioner’s sibling, and make recommendations
regarding their employment status and compensation, only the city commission can vote on any
changes to that employment status and compensation.” Request Letter, supra note 1, at 2.

          Second, “deliberation” embraces any discussion or consideration of a measure. The statute
does not define the term “deliberation.” However, it clearly is not synonymous with voting. In the
context of legislative bodies, the ordinary meaning of the term is “[tlhe consideration and discussion
of the reasons for and against a measure . . . .” IV ENGLISHOXFORDDICTIONARY414 (2d ed. 1989);
see TEX. GOV’T CODE ANN. 8 3 11 .Ol 1 (Vernon 1998) (words and phrases shall be read in context
 and construed according to rules of grammar and common usage; words and phrases that have
 acquired technical or particular meaning shall be construed accordingly). This definition comports
with the technical or particular meaning of the term in a related context. “Deliberation” for the
purposes of the Open Meetings Act, which applies to the meetings of governmental bodies such as
the city commission, is “a verbal exchange during a meeting . . . concerning an issue within the
jurisdiction of the governmental body or any public business.” TEX. GOV’T CODE ANN. 5 55 1.OOl
 (Vernon 1994); see also Bexar Medina Atascosa WaterDist. v. Bexar Medina Atascosa Landowners ’
Ass’n, 2 S.W.3d 459, 461 (Tex. App.-San Antonio 1999, pet. denied) (“deliberation” and
“discussion” synonymous for purposes of Open Meetings Act).

          Third, action related to “a bona fide class or category of employees” is action based on
objective criteria. In Attorney General Opinion DM-46, which dealt with a school superintendent’s
award of a merit raise to his spouse, this office said that the statutory phrase “action taken with
respect to a bona fide category of employees” means “that an officeholder’s action must be based
on objective criteria, which do not allow for the preference or discretion of the officeholder.” Tex.
Att’y Gen. Op. No. DM-46 (199 1) at 4. Examples of such an action would be a decision to give a
cost-of-living increase to all employees or an automatic salary increase or a promotion based on
longevity or level of education. See id. However, “[alny decision to give a salary increase based on
a performance evaluation contains an element of subjectivity.” Id. The opinion concluded that the
award of raises to school employees (including the superintendent’s spouse) based on performance,
“a process which can never have all subjective factors eliminated,” is not action taken with respect
to a bona fide class or category of employees. Id. Based on the information provided to us, the
deliberation here related only to the city commissioner’s sibling rather than a bona fide class or
category of employees.

         You next ask: “Are individual members of a city’s Board of Commissioners in violation of
any criminal statutes if such a member votes to approve a merit salary increase for a commissioner’s
sibling after being involved in a deliberation regarding the nepotistic character of the salary
increase?” Request Letter, supra note 1, at 1. We understand you to ask whether, by voting for a
salary increase, members of the city commissioners can be criminally responsible for the conduct
of the city commissioner      who participates in the salary deliberation in violation of section
The Honorable Frank Madla      - Page 5         (JC-0558)




573.062(b). It is beyond the scope of an attorney general opinion to identify and address all the
criminal statutes that may bear on this fact situation. We address only the provisions of chapter 573
of the Government Code and section 7.02 of the Penal Code, which you ask us to consider.

         To the extent we understand your question, we conclude that members of the city
commission would not violate section 573.084 of the Government Code merely by voting on a merit
salary increase for a fellow city commissioner’s sibling after they were involved in a deliberation in
which the fellow city commissioner participated in violation of section 573.062(b). A violation of
section 573.062(b) is a criminal offense under section 573.084 of the Government Code. See TEX.
GOV’T CODE ANN. $5 573.062(b), .084 (Vernon 1994). Section 573.062(b), however, does not
prohibit other members of the city commission from voting on the compensation of a relative of one
of the members. See id. 4 573.062(b). Compare id. with id. 8 573.041 (prohibiting voting for
appointment or confirmation of relative of any member of board, legislature, or court); Tex. Att’y
Gen. Op. No. JC-0184 (2000) at 2 (municipal utility district board members who voted to employ
husband of fellow board member violated section 573.041; abstention of board member married to
candidate did not relieve other board members from duty to comply with statute). By its terms,
section 574.062(b) prohibits only the particular city commissioner from taking an action with respect
to a relative. See TEX. GOV’T CODEANN. 8 573.062(b) (V emon 1994). As this office has indicated
previously, a court would apply the statute’s provisions in accordance with its express terms,
particularly given the criminal penalties attached to a violation of this provision. See Tex. Att’y Gen.
Op. No. DM-2 (1991) at 3 (citing Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) (due
process requires that criminal statutes give fair notice of activity that is outlawed)).

        With respect to the possible criminal liability of the other city commissioners, you ask us to
consider whether section 7.02 of the Penal Code applies to their conduct. See Request Letter, supra
note 1, at 2-3. Section 7.01 of the Penal Code makes a person criminally responsible as a party to
an offense if the offense is committed by the person’s own conduct or by the conduct of another for
which the person is criminally responsible.      See TEX. PEN. CODE ANN. 9 7.01 (Vernon 1994).
Section 7.02 sets out the circumstances in which a person is criminally responsible for an offense
committed by the conduct of another. See id. fj 7.02.

         Section 7.02 of the Penal Code could apply to section 573.084 of the Government Code
defining a violation of section 573.062(b) as a criminal offense. General provisions of the Penal
Code, such as section 7.02, apply to offenses defined outside the code unless the defining statute
provides otherwise. See id. 8 1.03(a) (conduct does not constitute a criminal offense unless it is
defined as an offense); (b) (titles 1’2, and 3 of Penal Code apply to offenses defined by other laws,
unless statute defining offense provides otherwise). Section 7.02 of the Penal Code provides as
follows:

                    (a) A person is criminally responsible   for an offense committed
                by the conduct of another if:
The Honorable   Frank Madla - Page 6            (JC-0558)




                        (2) acting with intent topromote or assist the commission of
                the offense, he solicits, encourages, directs, aids, or attempts to aid
                the other person to commit the offense; or

                        (3) having a legal duty to prevent commission of the offense
                and acting with intent to promote or assist its commission, he fails to
                make a reasonable effort to prevent commission of the offense.

Id. 8 7.02 (emphasis   added).

        Criminal responsibility under subsections (a)(2) and (3) of section 7.02 requires criminal
intent. See id.; see also, e.g., Lawton v. State, 913 S.W.2d 542, 555 (Tex. Crim. App. 1995);
Medrano v. State, 612 S.W.2d 576,578 (Tex. Crim. App. 1981); Barnes v. State, 62 S.W.3d 288,
297-98 (Tex. App.-Austin 2001, pet. ref d); Horton v. State, 880 S.W.2d 22, 24-25 (Tex. App.
-Tyler 1993, pet. ref d); Tex. Att’y Gen. Op. No. DM-500 (1998) at 3. To establish liability as a
party to an offense, it must be shown that, in addition to the illegal conduct by the primary actor, the
accused harbored the specific intent to promote or assist the commission of the offense. See Lawton,
913 S.W.2d at 555; Barnes, 62 S.W.3d at 296. The accused must know that he or she was assisting
in the commission of the offense. See Amaya v. State, 733 S.W.2d 168, 174-75 (Tex. Crim. App.
1986); Price v. State, 911 S.W.2d 129, 13 1 (Tex. App.-Corpus Christi 1995, pet. ref d).

         Thus, members of the city commission would not commit an offense under section 573.084
for violating section 573.062(b) merely by voting for a merit raise for a fellow member’s sibling.
They would also have to possess the specific intent to promote or assist the violation of the section
573.062(b) prohibition against a city commissioner voting or participating in a deliberation regarding
a sibling’s merit raise. Whether the requisite criminal intent is present will depend on the facts of
a particular case. See Tex. Att’y Gen. Op. Nos. DM-500 (1998) at 5; JM-689 (1987) at 3. We
cannot say, as a matter of law, that the city commissioners’ involvement in an earlier merit salary
increase deliberation during which the fellow city commissioner violated section 573.062(b)
establishes criminal intent.
The Honorable   Frank Madla - Page 7           (JC-0558)




                                        SUMMARY

                         Section 573.062(b) of the Government Code prohibits a city
                commissioner from participating in a deliberation regarding a merit
                salary increase for his sibling; and if the city commissioner
                participates in such a deliberation, he may be found to have violated
                the statute. Other city commissioners would not violate section
                573.084 of the Government Code, which makes a violation of section
                573.062(b) a criminal offense, by merely voting for a merit salary
                increase for a fellow city commissioner’s sibling after being involved
                in an earlier deliberation in which the fellow city commissioner
                participated in violation of section 573.062(b).




                                               JOHN     CORNYN
                                               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

Sheela Rai
Assistant Attorney General, Opinion Committee
