Can a Tennessee district attorney hire the daughter of a deputy DA as an assistant DA if they work in different divisions?

Subject

Opinion No. 18-31, Tennessee State Employees Uniform Nepotism Policy Act of 1980, July 6, 2018

Plain-English summary

Tennessee's Nepotism Act bars two relatives from working in the "same direct line of supervision" within a state governmental entity, where one relative supervises the other's job performance or work activities. The 20th Judicial District District Attorney asked whether hiring a deputy DA's daughter as an assistant DA, in a different division of the office, would run afoul of that rule.

The Attorney General concluded it would not. In the office at issue, each deputy DA served as a team leader for one division and supervised only the assistant DAs within that division. Deputy DAs gave advice and consulted across divisions but did not exercise disciplinary or evaluation authority over assistants outside their own team. Because the daughter would serve in a different division from her father, he would have no direct or indirect supervisory authority over her, and the Nepotism Act would not be triggered.

The AG distinguished three earlier opinions where nepotism had been found: in each of those, the higher-ranking relative had at least indirect supervisory or evaluation authority over the lower-ranking relative. The dividing line, in the AG's framing, is whether the parent is in a chain of command that touches the child's job performance, not whether the two relatives happen to be in the same office.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The Tennessee State Employees Uniform Nepotism Policy Act of 1980, codified at Tenn. Code Ann. §§ 8-31-101 to -103, is the state's general anti-nepotism statute for executive and judicial branch employment. The operative restriction in § 8-31-103 prohibits placing two relatives in "the same direct line of supervision whereby one (1) relative is responsible for supervising the job performance or work activities of another relative." The same statute carries a savings clause: it should not, "to the extent possible," be read to prohibit two relatives from working within the same governmental entity at all.

The Act defines "governmental entity" broadly to mean any state agency, authority, board, commission, department, or office in the executive or judicial branch (and autonomous state entities and institutions of higher education), but excludes the legislative branch. A district attorney's office falls within the executive branch under State v. Gilliam, 901 S.W.2d 385, 389 (Tenn. Crim. App. 1995), so it qualifies as a "governmental entity." Both deputy and assistant district attorneys are "state employees" within the Act's definition.

Two undefined phrases drive the analysis: "direct line of supervision" and "responsible for supervising the job performance or work activities of another relative." The opinion noted that no reported Tennessee court decision interprets either phrase, leaving the AG to read the language against the office's actual organizational chart.

Common questions

What does Tennessee's Nepotism Act actually prohibit?

It prohibits placing two relatives in the same direct line of supervision within a single state governmental entity, where one relative is responsible for supervising the other's job performance or work activities. It does not, on its own, prohibit two relatives from working in the same office; the statute expressly says it should be read to allow that where possible.

Does the Act apply to a district attorney's office?

Yes, according to this opinion. District attorneys are executive branch officers under the Tennessee Constitution and case law, so a DA's office is a "governmental entity" under § 8-31-102(1). Deputy DAs and assistant DAs are "state employees" under the Act.

When two relatives work in the same DA office but different divisions, is that always allowed?

Not automatically. The opinion turned on the specific facts: deputy DAs in this office supervised only assistants in their own division, did not exercise disciplinary authority over assistants outside their division, and did not evaluate them. If a deputy DA in another office had cross-division supervisory or evaluation duties, the answer could be different. The "direct line of supervision" question is fact-specific.

What kinds of supervision triggered nepotism findings in earlier AG opinions?

The opinion cited three prior AG opinions where nepotism had been found:

• Tenn. Att'y Gen. Op. 12-61: a public defender hiring his brother-in-law as an investigator violated the Act because the public defender had hire-and-fire authority and was the investigator's immediate supervisor.
• Tenn. Att'y Gen. Op. 06-101: an entity employing a husband and wife violated the Act because the husband was the immediate supervisor of the wife's immediate supervisor and ordinarily signed off on her performance evaluation.
• Tenn. Att'y Gen. Op. 04-113: an entity employing two relatives would violate the Act if one relative was responsible for evaluating the immediate supervisor of the other.

The common thread is at least indirect authority over the lower-ranking relative's job performance or evaluation, not just shared employment.

Does this opinion carry the force of law?

No. Tennessee AG opinions are persuasive authority. They guide state officials and are often followed in practice, but they are not binding on courts. A court interpreting § 8-31-103 in a contested case could reach a different result.

Citations

Statutes

• Tenn. Code Ann. § 8-31-103 (Tennessee State Employees Uniform Nepotism Policy Act of 1980, prohibition on relatives in same direct line of supervision)
• Tenn. Code Ann. § 8-31-102 (definitions of "governmental entity" and "state employee")
• Tenn. Code Ann. § 8-7-101 (district attorney general)
• Tenn. Const. art. VI, § 5 (district attorney as constitutional office)

Cases

• State v. Gilliam, 901 S.W.2d 385 (Tenn. Crim. App. 1995) (district attorneys as executive branch officers)
• Dearborne v. State, 575 S.W.2d 259 (Tenn. 1978)

Prior AG opinions

• Tenn. Att'y Gen. Op. 12-61 (June 7, 2012)
• Tenn. Att'y Gen. Op. 06-101 (June 14, 2006)
• Tenn. Att'y Gen. Op. 04-113 (July 12, 2004)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2018/op18-31.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
July 6, 2018

Opinion No. 18-31

Tennessee State Employees Uniform Nepotism Policy Act of 1980

Question

Does Tenn. Code Ann. § 8-31-103 preclude a district attorney from hiring the daughter of a deputy district attorney as an assistant district attorney when the deputy district attorney and assistant district attorney would serve in different divisions?

Opinion

No. The deputy district attorney and assistant district attorney would not be in the "same direct line of supervision" given that the deputy district attorney would not be responsible for "supervising the job performance or work activities" of the assistant district attorney. Tenn. Code Ann. § 8-31-103.

ANALYSIS

The Tennessee State Employees Uniform Nepotism Policy Act of 1980 provides in relevant part that, "[w]ithin each governmental entity, no state employees who are relatives shall be placed within the same direct line of supervision whereby one (1) relative is responsible for supervising the job performance or work activities of another relative." Tenn. Code Ann. § 8-31-103. The legislature also provided, however, that "to the extent possible, [the Act] shall not be construed to prohibit two (2) or more such relatives from working within the same state governmental entity." Id.

The Act defines the term "governmental entity" to mean "any state agency, authority, board, commission, department, or office within the executive or judicial branch of state government or any autonomous state agency, authority, board, commission, department, office or institution of higher education," except "any agency or office of the legislative branch." Id. § 8-31-102(1). The term "state employee" means "any person who is employed by a governmental entity." Id. § 8-31-102(2).

The position of district attorney is established by state law, see Tenn. Const. art. VI, § 5; Tenn. Code Ann. § 8-7-101, and the Tennessee Court of Criminal Appeals has noted that "[t]he district attorneys general for this state are officers within the executive branch of government," State v. Gilliam, 901 S.W.2d 385, 389 (Tenn. Crim. App. 1995); see also Dearborne v. State, 575 S.W.2d 259, 262 (Tenn. 1978). A district attorney's office is therefore a "governmental entity" for purposes of the Act, and a deputy district attorney and an assistant district attorney are "state employees" within the meaning of the Act.

Whether the Nepotism Act would preclude a district attorney from hiring a deputy district attorney's daughter as an assistant district attorney turns on whether the two positions are in the same "direct line of supervision, whereby" the father would be responsible "for supervising the job performance or work activities" of his daughter. Tenn. Code Ann. § 8-31-103. The Act does not define the phrases "direct line of supervision" or "responsible for supervising the job performance or work activities or another relative." And there are no reported Tennessee judicial decisions interpreting that statutory language.

In the district attorney's office that is at issue in this request, each deputy district attorney is a team leader for one of the office's divisions and supervises the assistant district attorneys who serve within that division. Each assistant district attorney reports first to his or her team leader and then to the district attorney. The deputy district attorneys provide advice to assistant district attorneys and consult on cases as needed, but they do not supervise assistant district attorneys other than those who serve within their division. Nor do they exercise disciplinary authority over assistant district attorneys. If hired, the daughter of the deputy district attorney in question would not serve in the same division as her father.

On these facts, the district attorney's hiring of the deputy district attorney's daughter as an assistant district attorney would not violate the Nepotism Act. The daughter would not report, either directly or indirectly, to her father. And the father would not be responsible for supervising his daughter's job performance or work activities. This situation is easily distinguishable from the relationships this Office has found problematic for purposes of the Nepotism Act in its prior opinions. In those opinions, the higher-ranking employee had at least indirect supervisory authority over the lower-ranking relative. See Tenn. Att'y Gen. Op. 12-61 (June 7, 2012) (district public defender's employment of his brother-in-law as investigator would violate the Act because public defender had the authority to hire and fire investigator and immediate supervisor of investigator); Tenn. Att'y Gen. Op. 06-101 (June 14, 2006) (entity's employment of husband and wife would violate the Act because husband was immediate supervisor of wife's immediate supervisor and ordinarily would sign off on wife's performance evaluation); Tenn. Att'y Gen. Op. 04-113 (July 12, 2004) (entity's employment of two relatives would violate the Act if one relative were responsible for evaluating immediate supervisor of other relative). Here, because the father would not exercise any supervisory authority over his daughter if she served in a different division than her father, their simultaneous employment by the district attorney's office would not violate the Nepotism Act.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

SARAH K. CAMPBELL
Special Assistant to the Solicitor General and the Attorney General

Requested by:
Glenn R. Funk
District Attorney General
20th Judicial District
222 Second Ave., North, Suite 500
Nashville, TN 37201