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DAN MORALES
 ATTORNEY
       GENERAL                                 June 29,1992

     Mr. Lionel R. Meno                             Opinion No. DM-132
     Commissioner of Education
     Texas Education Agency                         Re: Interpretation of the prior continuous
     1701 North Congress Avenue                     employment     provision    of the nepotism
     Austin, Texas 78701-1494                       statute, V.T.C.S. article 5996a, section l(b),
                                                    and related questions     (RQ-268)

     Dear Commissioner        Meno:

             You ask a number of questions about the Texas nepotism law, V.T.C.S.
     article 5996a, which prohibits school district officers and board members from
     voting for or confirming the employment of certain relatives’ of such officers and
     board members.

              Several of your questions relate to a particular set of facts. You describe a
     situation in which a man had been a school district employee for several years
     before 1990. In June of 1990 he was turned down for two different promotions. In
     March of 1991 he applied for another promotion, but a different person was
     selected for the position on March 12, 1991. Based on these three promotion
     denials, the employee filed three claims with the Equal Employment Opportunity
     Commission       (EEOC)    and an internal grievance with the school district.
     Subsequently, the employee has filed an action against the school district in federal
     court, alleging that the district illegally discriminated against him by not promoting
     him to the various promotions he sought. The federal lawsuit supersedes the
     employee’s EEOC and internal grievance claims. On May 4, 1991, the employee’s
     mother was elected to the school board.

            Your first question is whether the man could have retained a promotion
      made in June of 1990 in light of his mother’s election to the school board in May of



               ‘The nepotism statok spccifkally prohibits school district offkrs and board members from
      voting for, or contirming the employment of any person related within the second degree by aftimity
      (marriage) or within the third degree by consanguinity (blood) to any office or board. Article 59!Xh,
      V.T.C.S., instructs how to calculate degrees of affinity and consanguinity.


                                                     p.   680
Mr. Lionel R. Meno - Page 2              (DM-132)




1991. Under section l(b) of article 5996a, an employee related to a school board
member may retain his position under certain circumstances:

              Nothing herein contained, nor in any other nepotism law
         contained in any charter or ordinance of any municipal
         corporation of this State, shah 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 the following period prior to the
         election or appointment, as applicable, of the officer or member
         related to such employee in the prohibited degree:

              (1) at least 30 days, if the officer or member is appointed;

              (2) at least six months, if the officer or member is elected at
         an election other than the general election for state and county
         officers; or

             (3) at least one year, if the officer or member is elected at
         the general election for state and county officers.

In short, an employee may retain a position he assumed before his relative’s election
or appointment as long as the employee has served in that position for the length of
time required by section l(b). You advise that the mother of the employee in
question was elected at an election other than the general election for state and
county officers; accordingly, the six-month prior continuous service requirement set
forth in section l(b)(2) applies to this, situation.  The nepotism law thus would
permit the employee to retain a position he had assumed in June of 1990.

       Your second question is whether the son could have retained a position he
assumed in March of 1991. Because the son would not have held such a position for
six months before his mother’s election, the nepotism law would prevent his
continued employment in that position.

       Your third question is whether the board, with the mother serving as a
member, may promote the son to a higher-paid position.    Section l(c) of the
nepotism law provides an answer to your question:

               When a person is allowed to continue in an office, position,
          clerkship, employment, or duty because of the operation of


                                          p.   681
Mr. Lionel R. Meno - Page 3                    (DM-132)




          Subsection (b) of this section, the Judge, Legislator, officer, or
          member of the governing body who is related to such person in
          the prohibited degree shall not participate in the deliberation or
          voting upon the appointment,       reappointment,    employment,
          confirmation, reemployment, change in status, compensation, or
          dismissal of such person, if such action applies only to such
          person and is not taken with respect to a bona fide class or
          category of employees.

Thus, the board may appoint the son to a higher-paid position as long as his mother
does not participate in the deliberation or voting. See Attorney General Opinion
JM-1188 (1990) at 1-2.

       Your final question in regard to this particular set of facts is as follows:

           May a Texas school district compromise and settle a grievance, a
           complaint, or a lawsuit by hiring or promoting, or placing an
           employee in a position otherwise prohibited by the Texas
           nepotism statutes? In that regard, can the employee be awarded
           back pay or compensation as a part of a compromise and
           settlement when such pay or compensation is prohibited by the
           Texas nepotism statutes?

We limit our answer to this question to the facts presented here. If the school board
determines in good faith that the employee has a legitimate discrimination claim,
the board can decide whether to settle the claim by agreeing to pay back wages. See
Attorney General Opinion H-1186 (1978) at 3. Accordingly, if the board determines
that the employee has a legitimate claim with respect to either of the two
promotions for which he applied in June 1990, the board may agree to pay back
wages for the period beginning at the time the employee would have taken the
promotion to the present.       If the board determines that the employee has a
 legitimate claim with respect to the promotion for which he applied in March 1991,
 on the other hand, the board may agree to pay back wages only for the period
~beginning at the time the employee would have taken the promotion through the
 end of the pay period after his mother was elected to the school board.? Because of


         %e assume that this person is an at will employee and not a contract employee. Thus, we
need not answer any question about the payment of back wages under a contract entered into before
his mother became a trustee. See infix p, 7 (answering your seventh question, concerning at will and
contract employees).


                                              p.    682
Mr. Lionel R. Meno - Page 4              (DM-132)




the compensatory nature of a back pay settlement, Annot. 21 AL.R. FED. 472, 485
(1974) (awarding back pay under the Equal Employment Opportunities Act), the
nepotism statute requires the employee’s mother to abstain from participating in the
deliberation or voting on a back pay settlement. See V.T.C.S. art. 5996a, $ l(c).

      The school board also may agree, as part of a settlement, to promote the
employee to either of the positions it refused him in June 1990. Such a promotion
would be a prospective promotion. Pursuant to the nepotism statute, the
employee’s mother cannot participate in the board’s deliberation and voting on the
employee’s promotion. See id.

        The remaining questions you pose arise from various fact situations, all of
which differ from the facts underlying the first four questions. Your fifth question is
whether a school board employee may retain his position after he marries a relative
of a board member and thereby establishes a relationship within the scope of the
nepotism law. The nepotism law applies to relationships that arise during the
course of an individual’s employment. Attorney General Opinions V-785 (1949);
O-1408 (1939); Letter Opinion No. 89-53 (1989). The nepotism law does allow a
governmental body to retain an employee related to a board member if the
employee has sufficient prior continuous service. In the case of an individual
related to a school board member, the individual must have been employed for six
months before the election of the related board member. See V.T.C.S. art. 5996a,
8 l(b)(2). Significantly, under the nepotism statute, prior continuous service is the
time served before the board member’s election, not the time served before the
marriage. See Bean v. State, 691 S.W.2d 773 (Tex. App.--El Paso 1985, writ refd);
see also Attorney General Opinion DM-2 (1991) (explaining prior continuous
service requirement).

        Your sixth question is whether the nepotism statute applies to campus
principals since a campus principal exercises discretion over all appointments to his
or her campus. Under section 13.352 of the Education Code, each public school’s
principal shall “approve all teacher and staff appointments for that principal’s
campus from a pool of applicants selected by the district or of applicants who meet
the hiring requirements established by the district, based on criteria developed by
the principal     after informal   consultation    with the faculty.” Educ. Code
5 13.352(d)(l). This office has construed section 13.352(d)(l) to authorize public
school principals to approve all teacher and staff appointments on their campuses.
See Attorney General Opinion DM-27 (1991).




                                        p.   683
Mr. Lionel R. Meno - Page 5                       (DM-132)




        You contend that section 13.352(d) of the Education Code “has vested a
campus principal with powers of a public officer and the nepotism laws apply to the
principal and those same laws continue to apply to the board members. [You also
contend] that the governing board of a school district can hire a person related to a
campus principal within a prohibited degree, but the person may not be hired to
serve on the campus of the principal who is related to the applicant within the
prohibited degree.” In the past, this office has concluded that a person with a role in
the hiring process similar to that of a campus principal shares joint control over the
hiring of personnel and therefore is an officer of the state subject to the nepotism
law. See Attorney General Opinion MW-56 (1979); Letter Advisory No. 156 (1978).
However, in 1981 the Eastland Court of Civil Appeals expressly overruled Attorney
General Opinion MW-56, and we believe the court’s decision overrules as well the
reasoning in Letter Advisory No. 156. See Pena v. Rio Grande City Consol. Indep.
Sch. Dirt, 616 S.W.2d 658, 660 (Tex. Civ. App.--Eastland 1981, no writ). But c$
Attorney General Opinion JM-91 (1983).

        In Pena, the court considered whether the superintendent of an independent
school district is an officer of the school district subject to the statutory prohibition
against official nepotism. Pena, 616 S.W.2d at 658. The court found that under
sections 23.26 and 23.28(a) of the Texas Education Code the board of trustees of an
independent school district has the “exclusive right and sole legal authority to
appoint or employ teachers,” despite the fact that the superintendent               could
recommend to the board teachers the board should appoint. Id.~at 659. The Pena
court pointed out, however, that the board need not follow the superintendent’s
recommendations; furthermore, even if the board consistently follows the superin-
tendent’s recommendations, the board’s exclusive authority cannot be abrogated or
limited thereby. Id. Thus, relying on the indicia of public officers articulated in
Aldine Independent School Districtv. Stand&v,280 S.W.2d 578 (Tex. 1955),3 the Penn


          31n Aldine, the Supreme Court of Texas considered whether a school district tax assessor-
collector that the board of trustees appointed was a public officer. 280 S.W.Zd at 580. The Aldine
court stated that in determining whether a person is a public officer, the decisive factor is “‘whether any
sovereign function of the government is conferred upon the individual to be exercised by him for the
benefit of the public largely independent of thecor:~olof otlwrs.“’  Id. at 583 (quoting Durrbur v. Broria
Counry, 224 S.W.2d 738,740 (Tex. Civ. App-Galveston         1949, wit refd)) (emphasis added by supreme
coort). The court relied on several indicia of public office to determine that the tax assessor-collector
was not independent of the board’s control, and thus was not an officer. Id. at 580-85. First, the board
of trustees has the power to appoint its assessor-collector. Second, the assessor-collector had no futed
term of office. Third, no constitutional or statutory provisions provide for the tax assessor-collector’s
removal, rather, the board may remove the assessor-collector whenever it wishes (subject to the
assessor-collector’s right to appeal to a higher authority). Fourth, the assessor-collector is not required
to take an oath of oftice. Fifth, the board is authorized to determine the assessor-collector’s

                                                   p.   684
Mr. Lionel R. Meno - Page 6                         (DM-132)




court found that the superintendent did not act largely independent of the board’s
control and therefore was an agent of the board, not a public officer, for purposes of
the nepotism statute. 616 S.W.2d at 660.

          In our opinion, while each principal has authority to approve all teachers and
staff personnel assigned to the school, he or she lacks authority to hire anyone. The
principal-s authority is more like veto power. Hiring actually is done by the school
board, which retains the power to appoint a pool of applicants, or to establish the
hiring criteria.     Additionally, despite section 13.352(d)(l)% grant of power to
principals, nothing in the Education Code abrogates the school district’s board of
trustees’ “exclusive power to manage and govern” public schools in the district, nor
does any provision abrogate the board’s power to employ the principal at each
campus. Educ. Code $5 23.26, 23.28(a). We believe that the principal is, therefore,
not a public officer for purposes of the nepotism statutes. Accordingly, a principal
may approve the appointment of a teacher or staff member to the principal’s
campus even though the principal and appointee are related within a prohibited
degree under the nepotism statute. The school board can prevent nepotism at the
school level by refusing to send the principal the application of the principal’s
relative.

         Your seventh question is whether a school board may delegate to the
superintendent the authority to hire and dismiss employees. In Pena, the court held
that pursuant to sections 23.26 and 23.28(a) of the Education Code a school
district’s board of trustees alone has the right and legal authority to appoint or
employ teachers. Pena, 616 S.W.2d at 659. Even though a board may permit the
superintendent to recommend appointments of teachers, the board cannot delegate
its authority to hire and dismiss employees. See id. Similarly, a board cannot avoid
the burdens of the nepotism law by delegating to the superintendent the authority to
recommend to the school board an applicant the superintendent believes should fill
a position the school board has authorized.  See Attorney General Opinions DM-2
at 1; JM-1188 at 2.

        As a subpart of your seventh question, you ask whether, for purposes of the
nepotism statute, contract employees differ from at will employees. In numerous
opinions and letter advisories, this office has stated that contract employees who
lose their positions because of the nepotism law may remain employed for the


(footnote continued)
qualitications. Sixth, and tinally, the assessor-collector’s   compensarion is f&d by agreement between
the board and the appointed assessor-collector. Id.


                                                   p.    685
Mr. Lionel R. Meno - Page 7            (DM-132)




remainder of the employee’s contract term, while at will employees may remain
employed only for the remainder of the pay period. Compare Attorney General
Opinion V-785 at 5 (regarding contract employee) with Attorney General Opinion
O-1408 (regarding at will employee); Letter Opinion No. 89-53 (same).


       Your eighth question is, in essence, whether the nepotism law applies to
independent contractors. We recently answered this question in Attorney General
Opinion DM-76 (1992), in which we stated that “the nepotism law applies whenever
a governmental body hires a natural person, whether as an employee or as an
independent contractor.” Attorney General Opinion DM-76 at 2-3. We reaffirm
that conclusion here.

                                SUMMARY

              The nepotism statute, V.T.C.S. article 5996a, permits an
         employee to retain a promotion he received over six months
         before his mother was elected to the school board of trustees, if
         she was elected at an election other than the general election for
         state and county officers. However, the employee could not
         retain a promotion he received less than six months before his
         mother was elected to the school board of trustees. The school
         board, with the employee’s mother as a member, could promote
         the employee to a higher paid position so Iong as the mother
         does not participate in the deliberation       or voting on the
         promotion.

              A school district may settle a lawsuit by agreeing to pay back
         wages to an employee the district determines would have
         received a promotion       but for the board’s discriminatory
         treatment, even though the employee’s mother presently sits on
         the board. The board only may pay back wages for the length of
         time the employee would have held the promotion; thus, if his
         mother’s election to the board would have resulted in his loss of
         the promotion, he can receive back wages only for that period of
         time that he actually would have held the promotion.            The
         mother cannot participate in the board’s deliberations or voting
         on whether to settle by agreeing to pay back wages.

               A school board employee may retain his or her position
          after the employee marries a relative of a board member,
                                        p.   686
Mr. Lionel R. Meno - Page 8            (DM-132)




         thereby coming within the scope of the nepotism statute, if the
         employee was continuously employed for six months before the
         election of the related board member.

              The nepotism statute does not apply to campus principals.
         Thus, a principal may approve an applicant within a prohibited
         degree of consanguinity or affinity to work at the principal’s
         campus; however, the board may not employ a person related to
         any board member within a prohibited degree of consanguinity
         or affinity.

              The nepotism law applies to independent    contractors as well
          as employees.

                                                  Very truly yours,




                                                  DAN      MORALES
                                                  Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General




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