                                 The Attorrwy           General of Texas

JIM MATTOX
                                                   E’ovember 16,   1984
Attorney General



Supreme Court Building         Mr. Raymon L. Bynum                          Opinion No. ~~234
P. 0. BOX 12548                Conm&3&oner of Educ,ation
Auslin. TX. 70711. 2548        Texas Education Agmcy                        Be:     Whether     article     5996a.
51214752501                    201 E. Eleventh Street                       V.T.C.S.,    the nepotism law. is
Telex 9101874.1387
Telecooier  512/4750268
                               Austin, Texas   78X1                         applicable    to the special career
                                                                            ladder     committees     created   by
                                                                            House Bill No. 72
714 Jackson. Suite 700
Dallas. TX. 75202-1506
                               Dear Commissioner Ilynum:
2141742.8944

                                     You ask whether the nepotism law applies          to the selection        of
4824 Alberla Ave.. Suite 180   teachers    for   level  two,   three,  and four    of    the    career    ladder
El Paso. TX. 799052793         established     by House Bill   No. 72 of the Sixty-eighth         Legislature,
91515353484
                               Second Called Session.      Acts 1984, 68th Leg., 2nd C.S.,          ch. 28, at
                               269. Article 5996a,, V.T.C.S..    the nepotism statute,     provides in part:
.dOl Texas. Suite 700
HOUSTON, TX. 77002.3111                       No officer     of this State nor any officer      of any
7lY223.5888                               district,        county,    city 9     precinct,      school
                                          district    . . . shall     appoint,    or vote    for,    or
806 Broadway. Suite 312
                                          confirm the appointment to any office,           position,
Lubbock. TX. 79401.3479                   clerkship-,     employment or duty.        of any     person
8W747.5238                                related     within the second degree by affinity           or
                                          within th#e third degree by consanguinity            to the
                                          person so appointing or so voting,         or to any other
4309 N. Tenth. Suite S
McAllen. TX. 78501.1605
                                          member c,f any such board,           the Legislature,      or
5121682.4547                              court of which such person so appointing or voting
                                          may be a member, when the salary,                fees,     or
                                          compensal:?:on of such appointee is to be paid for,
200 Win Plaza. Suite 401)
                                          directly     or indirectly,     out of or from public
San Antonio. TX. 78205.2797
51212254191
                                          funds. . . . [Exception for appointment of person
                                          continuously       employed in any office,       position,
                                          clerkship,.    employment or duty for two years prior
An Equal Opporlwityl                      to elect:lon of relative.]       (Emphasis added).
Al,irms,i”e Action Emplova-

                               This statute    will   apply only if the assignment of teachers       to a
                               particular  career ladder level constitutes   appointment to “any office,
                               position,  clerkshi],,  employment or duty. . . .”

                                     Section 13.301 of the Education Code provides that each teacher
                               shall be assigned    to a career   ladder level  based on performance,
                               experience,  academic work, and job assignments.  See Acts 1984, supra,




                                                              p. 1050
Mr. Baymon L. Bynum - Page 2            (Jn-234)




at 354.  A teacher on level two. three,   or four of a career ladder is
entitled to the following  annual supplement in addition to the minimum
salary set under chapter 16. subchapter B of the Education Code:

            Level 2 . . . . . ii2.000
            Level 3 . . . . . ,$i ,000
            Lwel 4 . . . . . ,$i.OOO

Educ. Code 516.057(a)           (added by Acts 1984, supra, at 314).             But see
Educ . Code 516.057(c)(l)             (added by Acts          1984. supra,      am
(reduction     of supplements 1:: allotment             under 416.158 will not fully
fund them).       Entry to level two, three, or four of the career ladder
requires     possession       of a ta;rching certificate          which corresponds     to
that level,     a stated combing.tion of education and teaching experience
at    the prior        level,     and job      performance      that    meets  statutory
standards.      Educ. Code 5§13.308-13.310             (added by Acts 1984, supra. at
360);     see Educ. Code 513.304            (added by Acts 1984, eupra,          at 356)
(standatds      for     appraising     :,ob performance).          The State   Board of
Education is to adopt a pr>N:ess and criteria                    to be used by school
districts     in appraising         a 1:eacher’s      performance    for career    ladder
assignment.         At    least     two persons         will   appraise     a teacher’s
performance -- his supenrisoc and another person approved by the board
of trustees.        Educ. Code 0013.302;         13.303 (added by Acts 1984, supra,
at 354).      A school district          decision    is final and subject      to appeal
only if the decision             was ;brbitrary     and capricious      or made in bad
faith.      Educ. Code 113.319 (aided by Acts 1984. supra, at 364).

      A special   provision 8rrern.s assignment of teachers    to career
ladder levels   in the 1984-L!)85 school year.    Educ. Code 513.301(a)
note (added by Acts 1984, suera, at 365).    For that year, each teacher
is to be assigned to level%hor      level two on the career ladder.  Id.
A teacher may be assigned      to level   two if he has the years      of
experience and education required to enter that level:

             The determination       of a teacher’s      eligibility     to
             enter level two under this subsection will be made
             by a committee or committees appointed                  by the
             school district.      Each committee     shall   include one
             principal,    one person from central administration
             who has direct      responsibility     for personnel,      and
             one    other     admirkstrator.        This     three-member
             committee    shall   designate     two teachers      as level
             two teachers who chall then become members of the
             committee for purpclses of review of all remaining
             teachers.       The    committee      shall     consider      a
             teacher’s    past pe,rformance as a criterion              for
             placement on level two.




                                       p.   1051
Mr. Rapon    L. Bynum - Page 1)        (m-234)




        You ask whether article      5996a. V.T.C.S.,   the nepotism statute,
applies    to the selection    01’ level two, three, and four teachers.      As
we have pointed      out,   this statute    applies   to appointment to “any
office,    position, clerkship,    employment or duty. . . .(( V.T.C.S. art.
5996a.

      Assignment       to a hig’her career        ladder     level     results    in an
increased      salary    for the teacher,       but it does not constitute                a
promotion or change of jcjb duties.               A move up the career            ladder
recognizes       a    teacher’s   a.ccomplishments       in    education,      teaching
experience,       and job performance by giving            him a status which           is
transferable      to another school district.        Educ. Code 113.321 (added by
Acts 1984. m,             at 364) (teacher      is entitled      to transfer      career
ladder     level    between districts      unless    he waives entitlement).              A
teacher’s       place    on the    ,career    ladder    exists     independently        of
assignment      to particular   tl?aching duties,      as shown by section        13.313
of the Education Code (added by Acts 1984, *,                   at 362).

                 Sec.   13.313.     ‘REASSIGNMENT   OF DUTIES. If     a
             school   district     reassigns    a teacher   to another
             grade level or another subject over the objections
             of the teacher,     t,h,e teacher may not be reassigned
             to a lower careeLf’ ladder level         on the basis of
             performance     appraisals      during  the  first  three
             years in which the teacher teaches the new grade
             level or subject.

A change in career ladder :Level is thus not equivalent     to a change in
teaching duties.     A particular   career ladder level is not an office,
position,  clerkship,     or duty within article     5996a. V.T.C.S.    The
nepotism statute    therefore   does not apply to the selection   of level
two, three, and four teachers.

      Letter    Advisory    No. 68 (1973)     concluded     that article   5996a.
V.T.C.S.,    prohibited    a schcol teacher whose husband was a school board
member from receiving        a salary increase     over the regular increment
provided by law.        It relied on Attorney General Opinion M-671 (1970).
which discussed the exceptd,on for a relative         “continuously   employed in
any office,     position,    clerkship,  employment or duty for a period of
(2) years prior to the elec,tion or ‘appointment’ of the board member.”
This opinion stated as foll,ovs:

                 It is our opir~ion that the Legislature     intended
             by the underscorc!d language of the Article.       supra.
             only that a per:%on would not lose his job if a
             relative     were el#ected to an office     within    the
             Article’s     purview.   We cannot conclude    that the
             Legislature,      in view of the spirit   of the other
             provisions      of   the  Article,  intended     that     a
I4r. Raymon L. Bynum - Page 1,        (JM-234)




           relative   of such an office    holder   could    be
           promoted   to a L~~sition whereby his    financial
           remuneration woulc[be enhanced.  (Emphasis added).

       Letter Advisory No. 68 went one step further in concluding          that
article    5996a applied to a salary increase without promotion to a new
position.      But see Attorney General Opinion MU-135 (1980) (article
5996a. V.T.C.S.,    does not bar clerical    aide from receiving raise given
all persons doing similar work).          We believe Letter Advisory No. 68
departed from the language of article         5996a. V.T.C.S..  in concluding
that the statute applied to salary increases.           A salary increase    is
not "an office,     position,  clerkship,    employment or duty."    Attorney
General Opinion M-671 addrcfssed a promotion to a new position           at an
increased salary, not an increased salary alone.

       Other rulings     issued      hy this   office    adhere closely      to the
statutory   language.     Letter Advisory 69 (1973) stated that "the plain
and unambiguous language of the exception             makes it apply only to the
'office,   position,   clerkshi:?,     employment or duty' in which the person
shall have been cont1nuousl.y employed. . . ."             Therefore,    the school
board could not appoint            to a new.     less   remunerative    position    a
trustee's   relative  who had 1:ept his job under the exception in article
5996a. V.T.C.S.       See also Attorney        General Opinion MW-135 (1980)
(article   5996a. V.T.C.S.,     prevents assignment of teacher to additional
duty of preparing curriculrm guides during sunrmer). Letter Advisory
No. 68 gives article      5996a. V.T.C.S.,     an interpretation     not supported
by the words of the statute and is therefore overruled.

      Article   5996d. V.T.C.S    :) provides    that

            [n]o officer  or other person included within the
            third preceding article   [5996a] shall approve any
            account or draw or authorize     the drawing of any
            warrant or orde::    to pay any salary,      fee or
            compensation of such ineligible   officer or person,
            knowing him to be so ineligible.

This provision      applies to persons who have been employed in violation
of article     5996a. V.T.C.S.       Attorney General Opinions O-1031, O-361
(1939).     See  also   Attorney   General   Opinion M-857 (1971).    There is no
violation    of article      5996a, V.T.C.S.,     when a teacher is assigned      2
career     ladder     level.      Article     5996d.  V.T.C.S.,    is   therefore
inapplicable      and does no': bar the trustees            from approving     the
teacher's    salary payments.        The nepotism law does not apply to the
assignment of teachers         to level    two, three, and four of the career
ladder under chapter 13, subchapter E, of the Texas Education Code.




                                   p. 1053

                                                                                        L
Mr. Raymon L. Bynum - Page 5      (JM-234)




                                 SUMMARY

             Articles  5996a snd 5996d. V.T.C.S.,   concerning
     ‘    nepotism, do not apply to the selection     of level
          two, three, and fmr teachers pursuant to chapter
          13, subchapter E c'f the Texas Education Code added
          by House Bill       No.  72 of    the   Sixty-eighth
          Legislature,    Second   Called  Session.      Letter
          Advisory No. 68 (1973) is overruled.




                                           JIjph
                                             Attorney   General of Texas

TOMGREEN
First Assistant   Attorney   General

DAVID R. RICHARDS
Executive Assistant Attoraey     General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINIONCOMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton




                                 p. 1054
