                                 February     24,   1987




Honorable Hugh Parmer                          Opinion     No.    JM-636
Chairman
Intergovernmental   Relations                  ue:    Whether an individual     may avoid
    Committee                                  application      of the nepotism     law to
Texas State Senate                             a relative         by  resigning    from    a
P. 0. Box 12068                                position    on the board of trustees       of
Austin,   Texas   78711                        a school      district    and subsequently
                                               standing    for re-election

Dear Senator      Parmer:

       You inquire      about the application         of the nepotism       law, article
5996a.     V.T.C.S.,     to a particular       case     involving    a teacher      who is
related     to a school       board member.       An independent        school    district
hired    a teacher      in August of 1985.         The school       board   approved     the
teacher’s     rehiring     in March of 1986.         In April,     1986. the teacher’s
mother was elected          to the school     board.      A mother and daughter          are
related    within    the first    degree of consanguinity,        Letter   Advisory     Nos.
115 (1975);        67 (1973),       a relattonship        covered    by the     following
prohibition     of the nepotism act:

                 No officer       of this State . . . nor any officer
             or member of any State             district,       county,      city,
             school    district      or other      municipal       board . . .
             shall    appoint,       or   vote    for,      or    confirm       the
             appointment       to any office,        position,       clerkship,
             employment or duty,         of any person         related    within
             the second degree by affinity              or within     the third
             degree     by      consanguinity        to     the     person        so
             appointing     or so voting,      or to any other member of
             any such board . . . when the salary,                     fees,      or
             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.      . . .

V.T.C.S.   art.    5996a.

     The teacher    had not completed   a year of service                  prior    to the time
her mother   joined     the board.    Thus,   she did not                   qualify     for  the
exemption proviso    set out in the nepotism law:




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             [Plrovlded,      that nothing     herein     contained.      nor in
             any other nepotism         law contained      in any charter       or
             ordinance      of any municipal         corporation       of    this
             State,    shall    prevent    the appointment.       voting     for,
             or confirmation        of any person who shall          have been
             continuously         employed     In     any      such     office,
             position,      clerkship,      employment       or duty      for     a
             period    of one (1) year 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.

V.T.C.S.     art. 5996a.    The school board on which the teacher’s         mother
served    could   not renew the daughter’s      teaching    contract,     but   the
teacher     would be allowed    to serve   out her present      contract.     See,
-,       Attorney   General  Opinions  MU-286 (1980);    M-862 (1971);      Letter
Advisory    No. 70 (1973).

      You ask whether the school board member may resign     in February of
1987 and file  to run again in the April    4, 1987 election    so that her
daughter  might continue   to hold her job as teacher.        The teacher’s
contract  would presumably   be renewed during  the time her mother was
not on the board.

      As a preliminary     matter,   we will         point out that the board member
will  continue   to serve     in a holdover           capacity  after   her resignation
until  she is replaced     by a successor.           Article   XVI, section   17. of the
Texas Constitution     provides    as follows:

                 All officers    within   this  State    shall   continue
             to perform the duties      of their offices     until   their
             successors    shall be duly qualified.

An officer’s          resignation     creates    a legal    vacancy    which can be filled
in the manner provided               by law.      See Attorney      General    Opinion   M-659
(1970).        The officer,        however,     continues     to serve      and to have the
duties    and powers of office            until   a successor     is qualified.       Jones v.
City of Jefferson,             1 S.W. 903 (Tex.        1886);   Pyote Independent       School
District      v. Estes.       390 S.W.Zd 3 (Tex. Civ. App. - El Paso 1965, writ
ref’d    n.r.e.).         Thus, until      the legal     vacancy    created    by the school
trustee’s        resignation      is filled      by a successor,         she will    remain a
member of          the    school    board,     and the board        will     be barred     from
reappointing         the trustee’s      daughter    as a teacher.

      Assuming     that the trustee   resigns  from the board and is replaced
by a successor.      we must consider   whether her daughter may be hired for
another school      year in March of 1987.




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      We believe     the school      board may reappoint        the teacher     In this
case,   if her mother has resigned          from the board and has been replaced
by a qualified       successor.       If   no board     member is     related    to the
teacher    in a prohibited      degree,    the plain    language    of article    5996a.
V.T.C.S.,     would not bar her          reappointment.       We caution,      however,
against   the practice    of trading.       V.T.C.S.   art.   5996c.

       Your request     letter     also    suggests    that    the   teacher    will   be
exempted from the nepotism          act if her mothe.r is again elected            to the
school    board.     You reason      that   her year     of service       prior   to her
mother’s    resumption   of office     in April,    1987, will    constitute    one year
of prior     continuous   service    within    the exemption     provision.      We will
next address this issue.

       We may look      to the emergency              clause     of the bill          in order       to
ascertain     the legislative       intent     underlying        the one-year         requirement.
Popham v. Patterson,          51 S.W.2d 680 (Tex.                1932);     see also       Attorney
General    Opinion V-1142 (1951).             A 1949 amendment to the nepotism                     law
added the exemption provision.              Acts      1949, 51st Leg.,         ch. 126. at 227.
The original        exemption      provision          exempted      persons       who had been
“continuously      employed . . . for a period                 of two (2) years            prior     to
the election      or appointment        of the officer”            related      to the employee
within    a prohibited      degree.       Id.     Il.      Article      5996a,     V.T.C.S.,       has
been amended twice since           1949.?ee           Acts    1951, 52nd Leg.,          ch. 97, at
159;    Acts    1985,   69th     Leg.,     chT152,            at   683.       The most        recent
amendment,      adopted    in 1985.       reduced        the required          period     of prior
service    from two years       to one year and made other                   changes      affecting
the employment of persons who are exempted by the one year provision.
Acts 1985, 69th Leg..         ch. 152, 91, at 683.               The amendments subsequent
to 1949 have not,       however,      changed the requirement                that the employee
have been continuously          employed “prior”            to his relative’s           assumption
of office.       Thus, we may still           look to the emergency                clause     of the
1949 amendment for some indication               of legislative          intent.

       The emergency        clause    states    in part:

                   The fact    that   numerous employees         of the State
              and Its agencies         and subdivisions       whose services
              are valuable      to the State are required           to give up
              such employment because            members of their         f,amily
              may be, from time to time, elected               to offices      in
              this    State   under whom such employees             hold their
              employment,      and the fact       that    persons     who have
              continuously        served     the   State      prior     to    the
              election     to some office       of a relative       should not
              be discharged      for that reason alone,           and the fact
              that the purpose        of the nepotism        law was not to
              oust    such persons       from legitimate       employment by
              the State,     create    an emergency.     . . .




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Honorable    Hugh Parmer - Page 4              (JM-636)




Acts 1949, 51st Leg.,        ch. 126, 13. at 227.      This clause      recognizes   the
value     of a public    employee's   services,    particularly      au employee     who
has served     continuously     for a designated     period    of time.      The length
of service      provides    a measure of the employee's          value,     in that   it
signifies    some degree of job loyalty        and job experience.

       The one year may also            provide      an opportunity        for disinterested
evaluation     of the employee.           Once the employee's            relative    becomes     a
board member, the other board mem@ers may hesitate                       to fire him because
of his     relationship        to their      fellow      board    member.        A supervisor,
answerable       to    the    board,    may be        reluctant       to    give    a negative
evaluation     to an employee related            to a board member.            During the one
year of prior        service,    however.     the employee may prove his merit,               and
the board may evaluate            him. without        being     subject     to such indirect
influences     as an actual         nepotism     relationship       might cause.        Cf. New
                                                                                       --
Mexico State Board of Education                v. Board of Education,             624 P.2d 530
(N.M.    1981)      (competency      of   tenured      teacher     was established         years
before   family member was elected             to school     board).

       The legislature         has decided     to distinguish        between employees      who
have completed          one year      of prior     continuous       service    before     their
relative       takes    office     and employees       with     less     than one year        of
service.        See, e.g.,      Bean v. State,      691 S.W.Zd 773 (Tex.           App. - El
Paso 1985. writ ref'd):             Attorney    General    Oninion Nos. JP-371         (1985):
MW-23 (1979);        M-862 (1971).       We cannot disregard         the distinction     which
the legislature        has enacted.       We believe     the legislature       intended    that
public     employees      have a year        of prior     service      free  of a nepotism
relationship.        See, e.g.,     Attorney   General Opinion M-862 (1971)            (period
of prior      service    starts    when employee begins         work, not when he signs
contract).

       Therefore,    ff the trustee   in this case severs her connection       with
the school     board in February of 1987 and rejoins       the board in April of
1987, her daughter      will   not have completed    the one year of continuous
service     prior   to the time her relative        took office.       Only if  the
trustee    remains off    the board for a full     year will    her daughter   have
an opportunity      to complete   the required  year of prior     service.

                                        SUMMARY

                 The exemption     provision      of the nepotism       law,
             article    5996a, V.T.C.S.,      requires     the employee    to
             complete    one year of continuous         service  at a time
             that    the employee's     relative      is not an officer
             with power to hire and fire         the employee.

                 Where a school   trustee             leaves  office   for    two
             months   and then   resumes              office,   the  trustee's
             relative  has not completed              one year of continuous




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Honorable   Hugh Parmer - Page 5         (JM-636)




             service   prior   to    the   time her   relative    takes
             office.   Only if the trustee     remains off the board
             for a full    year till    her daughter   have an oppor-
             tunity  to complete       the required    year    of prior
             service




                                                Attorney   General   of   Texas

JACK HIGHTOWER
First Assistant Attorney      General

MARY KELLER
Executive Assistant     Attorney   General

RICK GILPIN
Chairman, Opinion     Committee

Prepared    by Susan L. Garrison
Assistant    Attorney General




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