Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas JIM MATTOX October 29, 1985 Attorney General SuPromeCQun Building Ur. U. 1. Kirby Opid.an No. JX-371 P. 0. Box ta4a Aurtln. TX. 757t1.254s Colldlreloner of Educatloe 51214752501 Texaco Education Agency Be: whether l tea c h e r tray be Tdex.5lW57C1257 201 Saw Bleventh Street promtad to reglatrar In a Td.co@n 5lZ475.0255 Auatln, Texan 78701 school dlatrlct wbere her hueband serves on the board of 714Jlcluon. Suite 700 truatee8. and related questlons oalla& TX. 752024505 2141742.S!% Dear Hr. Kirby: Tou request ILCI lnterpretatlonof the nepotism law, article 5996a. 4824AlbertaAve.. suite 150 El Pm.o.TX. 70205.2193 V.T.C.S., wblch prohibits a board of echool trustee8 from employing 01- any permn related within a prohibited degree to a board medcr. YOU state tbat an lni.ivldual was otlgl~lly qloycd as a teacher by an lndepmdmt school dlotrlct ln August 1974. .Xier husband, a relative 1001Tqxu. Suite 7~0 .~. vlthln the degree o fl fflnlty wbject to the nepotlm lav. became a HQY4tOn.TX. 77002.2111 712f22%x5 trustee of the di.at.rlct ia April 1978. See Attorney General Opinion V-785 (1949). Sioco the teacher had byxt time been employed for forty-five montha contlnuoualy, rhe vae llloved to continue working w5 aroadway.suit. 312’ for the lchool d.letrlct under the grandfather provision of the Lubbock TX. 7S4al-247S nepatlm kv thm in effect: Soa747-5225 provided, that nothins herein contained... 008 N. Tmth, SuIta 8 &all :prrevmt. the appolnmt, votlnS for, or McAllm. TX. 7s5ol-16s5 : cmflrmrtloo of cay person who shall have hem 512mS2.4547 ea.. cmtlnuuuely .emplayed: in my 8UCh off+. ,~. porltlaa:~-clerkablp, .emplmt or duty for a 200 MaIn Plaza,Sut4 400 * ;*"perlod olf two (2) yeero'ptir to the election or San Antonlo,TX 7S2os27m7 fi' appaintmmt of the officer or member appointing. 512m5.4191 ;:,. ;’ :'votinS *or. or -confitning the lppolntmeat, or to _.. c. the llm~ctionor lppoinwt of the officer or m&er't~latcd to mcb ~cmployee lo the prohibited degree; :~ : _~. ..-. 2 ..- cb . 97;~at:,l59 (formerlrtfcle 5996a. V.T.C.S.). hcr8.~1,951,~;5296..Irq., ~Actes:1985, ~~5!$b.%eS:,,eh;.lS2, d.:800-01 (amendmentby Senate Bill ~.lo,..599.$o -quotti$ .lan~uaSe ~offectivo.,May 24. 1985). Tbla provision ~~~e$loVed.tbe~~+r to contimu her +@yamt In the dlatrlct but did aat :.allarr .the, board of trustoem to trenefor her to l dlffermt 'poeltlon. Attqsoq General Opiniona JM-288 (1984); M-671 (1970); Letter Advisory No. 69 (1973). * . p. 1700 Hr. W. N. Kirby - P#ISS 2 (JM-371) In July of 19:'9. the board of trustees promoted tha teacher to high school rag18 t:car. Accordtag to the Information you have submitted. she was :g:Lven the registrar position at her teacher’s daily salary rate plus em additional ten days of employment. Eer contract and the school records placed her at pay grade eight, although ths registrar position LIB customarily classlflcd as a grade 10B position. The trustees’ action In promoting this lndlvvidual to registrar violated the nepot~lm statute. The ma year proviso of the former nepotism statute, quoted above, allowed the teacher to keep the “office. position, ~:larkshlp. employment or duty” In which she had been continuously tmployed for at least two years before her husband became a trustee. Attorney General Opinion JM-234 (1984); Letter Advisory No. 69 (1973). It did not authorize the board to appoint her to a different position. even a less remunerative ode, or to assign her additional day11 of vork. Attorney General Opinion MU-135 (1980); Letter Advisory No. 69 (1973). The Taas Education Agency has concluded that he:: promotion to registrar violated article 5996a. V.T.C.S.. and we a(;rhe wlth this conclusion. The school dlstrlct viabes to continue this amployee as registrar. You auk whether the district may return her to a pay status identical to that which she maintained before the promotion but allow her to coutlme to perform her duties as registrar. Your qusstlotl about potential action- by the school trustees requires us to lntm~rst article 5996a, V.T.C.S., as amended by Senate Bill No. 599 of ,tbe Slxty-nlnth LaSlslature. Senate Bill No. 599 became effective on May 24. 1985. and the grandfather clause of article 59968, V.T.C.S.. now reads as follows: provided, that nothing herein contained . . . shall prevent the appointment. voting for, or conflrmet~lon of any person who shall have been continuously employed In any Nch office, posltlon , clerkship, employment or duty far a period of’ one (1) year prior to the election or appointment of the officer or member appointing, voting for, or conflrmlng the appointment. or to the election or appointment of the officer or member rolatsd to such aployee ln the prohibited p. 1701 Mr. U. N. Kirby - Iage 3 (Jh-371) reappoint~nent, euployuent, confirmation, reeuploy- uent, chrzge in status, campensatiott, or disuissal of such person. If such action applies only to such perron and Is not taken with respect to a bona fidar class or category of employees. (Euphasicyadded). The employee j.n question was continuously l uployed for forty-five months as a teacher before her husband became a board member in 1978. The nepotism law prohibited the school board from promoting her to registrar In 1979; ahe was lnaliglble for that position. See Attorney General Cpinlon H-728 (1970). The board's action vat ineffective to change her legal status f&u teacher to registrar. See Fairless v. Cameron County Water Improvemoat District go. 1. 25 S.2d 651 (Tex. Civ. App. - San konio 1930, writ ref'd). In our opinion the employee Is still II teacher for purposes of interpretlng'the nepotism statute even though she has perforued the duties of registrar since 1979. Under the recently auended grandfather provision of article 5996a. V.T.C.S., the'echool board may change her employment status and compensation, but the trustee to whom she Is related may not particfpate In the deliberation or vote thereon. Under article 5996a, V.T.C.S., as amended by the Sixty-ninth Legislature. a school teacher with one year of continuous euployuent prior to her husband% election as school trustee may continue to serve the district as a teacher. Tba school board say change her euploynent status and compensation, but her relative say not deliberate or vote ,tlrereon. d-/h Very ruly your , . JIM MATTOX Attorney General of Texas TON GREEN First Assistant Attorney General DAVID R. RICHARDS Executive Assistant Attorney General ROBERTGRAY Special .Assistant Attorney General p. 1702 Mr. U. W. Kirby - Pwgc 4 (JM-371) RICK GILPIN cbairmau, opi.nion comittac Prepared by Suun 1,. Garrieon Aarirteut Attoruey General APPSDVBD: OPINIOI~ COIMITYKE Kick Gilpin, Chairnm Colin Cirl Sueau Garrieou Tony Guillory JiaUdlirrger Jennifer Riggo Baucy Suttou . sarab Woelk BrucaYoua~blood ; I 2 .,.’ 1. ._ . . -. p; 1703