Can a school employee keep their job if a relative is elected to the board?

Plain-English summary

The Texas Commissioner of Education asked the Attorney General eight questions about the Texas nepotism law, V.T.C.S. article 5996a, which bars school district officers and board members from voting for or confirming the employment of close relatives (within the second degree by marriage or the third degree by blood). Several questions arose from one fact pattern: a man had worked for a district for years, was turned down for promotions in June 1990 and again in March 1991, filed discrimination claims and a federal lawsuit, and then in May 1991 his mother was elected to the school board.

On the facts, the opinion read article 5996a section 1(b)'s "prior continuous employment" exception. An employee may keep a position he assumed before a relative's election if he held it long enough first: 30 days if the relative was appointed, six months if the relative was elected at an election other than the general state-county election, and one year if elected at the general election. Because the mother was elected at a non-general election, the six-month rule applied. So the employee could have kept a promotion taken in June 1990 (more than six months before the May 1991 election), but not one taken in March 1991 (less than six months before). Under section 1(c), the board could still promote the related employee to a higher-paid position, and could settle a good-faith discrimination claim by paying back wages, as long as the mother did not take part in the deliberation or vote on any action that applied only to her son. For the June 1990 promotions, back wages could run from when he would have taken the promotion to the present; for the March 1991 promotion, only through the end of the pay period after the mother's election, because her election would have cost him that position.

The remaining questions broadened out. Marriage into a board member's family does not automatically cost an employee his job; the continuous-service clock runs from the board member's election, not from the marriage, so six months of service before the election is what matters. Bean v. State, 691 S.W.2d 773 (Tex. App.—El Paso 1985, writ ref'd). The opinion's most consequential conclusion was that a campus principal is not a "public officer" for nepotism purposes. Earlier opinions had treated someone with a principal-like hiring role as an officer subject to the law, but the Eastland Court of Appeals in Pena v. Rio Grande City Consolidated Independent School District had held that a school superintendent, who can recommend but not appoint, is an agent of the board rather than a public officer, because the board holds the exclusive authority to hire. Applying the public-officer test from Aldine Independent School District v. Standley, the opinion reasoned that a principal's power to "approve" appointments is more like a veto than a power to hire, and that nothing in the Education Code strips the board of its exclusive power to manage the schools, so a principal is not a public officer. A principal may therefore approve a related applicant for his own campus, although the board itself still may not employ a person related to a board member. The opinion added that a board cannot dodge the nepotism law by delegating hiring to the superintendent; that contract employees displaced by the law may serve out their contract term while at-will employees may serve only through the pay period; and that the nepotism law applies to independent contractors as well as employees, reaffirming Attorney General Opinion DM-76.

Currency note

This opinion was issued in 1992. 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. The Texas nepotism statute has since been recodified into chapter 573 of the Government Code, and the Education Code provisions cited here have been renumbered, so confirm the current statutes before relying on any rule described.

Background and statutory framework

The nepotism statute, V.T.C.S. article 5996a, prohibits school district officers and board members from voting for or confirming the employment of any person related within the second degree by affinity or the third degree by consanguinity, with article 5996h providing the method for calculating degrees of affinity and consanguinity. Section 1(b) excepts an employee who has been continuously employed for a set period before the related officer's election or appointment: at least 30 days if the officer is appointed, at least six months if elected at an election other than the general election for state and county officers, and at least one year if elected at the general election. Because the board member here was elected at a non-general election, the six-month requirement of section 1(b)(2) applied, so an employee could retain a position assumed in June 1990 but not one assumed in March 1991.

Section 1(c) provides that when a person continues in a position because of the section 1(b) exception, the related officer or member "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." So the board could promote the related employee to a higher-paid position as long as the mother abstained. See Attorney General Opinion JM-1188 (1990) at 1-2. On settlement, if the board determined in good faith that the employee had a legitimate discrimination claim, it could agree to pay back wages, see Attorney General Opinion H-1186 (1978) at 3, but because back pay is compensatory, see Annot., 21 A.L.R. Fed. 472, 485 (1974), section 1(c) required the mother to abstain from deliberating or voting on the settlement.

On the continuing questions, the nepotism law applies to relationships that arise during employment, and prior continuous service is measured from the board member's election, not from a marriage. Attorney General Opinions V-785 (1949), O-1408 (1939); Letter Opinion No. 89-53 (1989); Bean v. State, 691 S.W.2d 773 (Tex. App.—El Paso 1985, writ ref'd); see Attorney General Opinion DM-2 (1991). On principals, Education Code section 13.352(d)(1) directs each principal to approve teacher and staff appointments for the principal's campus from a pool selected by the district. Earlier opinions had concluded that someone with a similar hiring role shared joint control and was an officer subject to nepotism, see Attorney General Opinion MW-56 (1979); Letter Advisory No. 156 (1978), but the Eastland court expressly overruled Attorney General Opinion MW-56 in Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658, 660 (Tex. Civ. App.—Eastland 1981, no writ); but cf. Attorney General Opinion JM-91 (1983).

In Pena, the court held that under Education Code sections 23.26 and 23.28(a) the board of trustees has the "exclusive right and sole legal authority to appoint or employ teachers," even though the superintendent may recommend teachers, and that the board's exclusive authority cannot be abrogated even if it consistently follows the superintendent's recommendations. Relying on the indicia of public office from Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955), where the Texas Supreme Court held 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 the control of others" (quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740 (Tex. Civ. App.—Galveston 1949, writ ref'd)), the Pena court found the superintendent did not act largely independent of the board and so was an agent, not a public officer. The opinion concluded the same is true of a principal: the principal's approval power is more like a veto, hiring is done by the board, and nothing in the Education Code abrogates the board's exclusive power to manage the schools or to employ each campus principal, Educ. Code §§ 23.26, 23.28(a). A principal is therefore not a public officer for nepotism purposes and may approve a related applicant for the principal's campus, though the board may prevent campus-level nepotism by refusing to send the principal the relative's application.

On delegation, Pena established that the board alone may appoint or employ teachers, and a board cannot avoid the nepotism law by delegating to the superintendent the authority to recommend who should fill an authorized position. See Attorney General Opinions DM-2 at 1; JM-1188 at 2. On contract versus at-will employees, contract employees who lose positions because of the nepotism law may remain for the rest of the contract term, while at-will employees may remain only for the rest of the pay period. Compare Attorney General Opinion V-785 at 5 with Attorney General Opinion O-1408; Letter Opinion No. 89-53. Finally, the nepotism law applies whenever a governmental body hires a natural person, whether as an employee or independent contractor, reaffirming Attorney General Opinion DM-76 (1992) at 2-3.

Common questions

Can a school employee keep a promotion after a parent joins the board?
Under this opinion, yes if the timing works. The employee may retain a promotion held for at least six months before the relative's election (where the relative was elected at a non-general election). A promotion held for less than six months before the election could not be retained.

Can the board promote or settle with an employee related to a member?
Yes, with the related member sitting out. The opinion concluded the board could promote the related employee to a higher-paid position and could settle a good-faith discrimination claim with back wages, as long as the related board member did not participate in the deliberation or vote on actions specific to that employee.

Does marrying into a board member's family cost you your job?
Not by itself. The opinion held the continuous-service clock runs from the board member's election, not the marriage, so an employee continuously employed for six months before the election may keep the position.

Does the nepotism law apply to campus principals?
No. The opinion concluded a principal is not a public officer, so a principal may approve a related applicant for the principal's campus. The board, though, still may not employ a person related to a board member within a prohibited degree.

Does the nepotism law cover independent contractors?
Yes. The opinion reaffirmed that the nepotism law applies whenever a governmental body hires a natural person, whether as an employee or an independent contractor.

Citations

• V.T.C.S. art. 5996a
• V.T.C.S. art. 5996h
• Educ. Code § 13.352(d)(1)
• Educ. Code § 23.26
• Educ. Code § 23.28(a)
• Bean v. State, 691 S.W.2d 773 (Tex. App.—El Paso 1985, writ ref'd)
• Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658 (Tex. Civ. App.—Eastland 1981, no writ)
• Aldine Independent School District v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Dunbar v. Brazoria County, 224 S.W.2d 738 (Tex. Civ. App.—Galveston 1949, writ ref'd)
• Annot., 21 A.L.R. Fed. 472 (1974)
• Attorney General Opinion DM-2 (1991)
• Attorney General Opinion DM-27 (1991)
• Attorney General Opinion DM-76 (1992)
• Attorney General Opinion JM-91 (1983)
• Attorney General Opinion JM-1188 (1990)
• Attorney General Opinion MW-56 (1979)
• Attorney General Opinion H-1186 (1978)
• Attorney General Opinion V-785 (1949)
• Attorney General Opinion O-1408 (1939)
• Letter Advisory No. 156 (1978)
• Letter Opinion No. 89-53 (1989)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0132
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0132.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 29, 1992

Mr. Lionel R. Meno
Commissioner of Education
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1494

Opinion No. DM-132

Re: Interpretation of the prior continuous employment provision of the nepotism statute, V.T.C.S. article 5996a, section 1(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.

[Footnote: The nepotism statute specifically prohibits school district officers and board members from voting for, or confirming the employment of any person related within the second degree by affinity (marriage) or within the third degree by consanguinity (blood) to any officer or board. Article 5996h, V.T.C.S., instructs how to calculate degrees of affinity and consanguinity.]

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 1991. Under section 1(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, 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 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 1(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 1(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 1(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 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 the compensatory nature of a back pay settlement, Annot., 21 A.L.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, § 1(c).

[Footnote: We 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 infra p. 7 (answering your seventh question, concerning at will and contract employees).]

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, § 1(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 ref'd); 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 § 13.352(d)(1). This office has construed section 13.352(d)(1) to authorize public school principals to approve all teacher and staff appointments on their campuses. See Attorney General Opinion DM-27 (1991).

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. Dist., 616 S.W.2d 658, 660 (Tex. Civ. App.—Eastland 1981, no writ). But cf. 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 superintendent'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 District v. Standley, 280 S.W.2d 578 (Tex. 1955), the Pena 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.

[Footnote: In 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.2d 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 the control of others." Id. at 583 (quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740 (Tex. Civ. App.—Galveston 1949, writ ref'd)) (emphasis added by supreme court). 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 fixed 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 office. Fifth, the board is authorized to determine the assessor-collector's qualifications. Sixth, and finally, the assessor-collector's compensation is fixed by agreement between the board and the appointed assessor-collector. Id.]

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)(1)'s 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 §§ 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 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 long 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, 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