Does Texas's nepotism law apply to a junior college board hiring a relative of a board member if the president actually does the hiring?

TX AG Opinion GA-0415: Does nepotism law reach a junior college board that delegated hiring?

Plain-English summary

The District Attorney for Nueces County asked whether the state nepotism law barred Del Mar College, a two-year junior college in Corpus Christi, from hiring an adjunct instructor who was related within a prohibited degree to a member of the College Board of Regents. The wrinkle was that under a board policy, the college president, not the board, actually hires faculty. The district argued that the only person the nepotism law could touch in the normal course was the president, who is not related to the instructor, so the hire was fine.

The opinion disagreed. The nepotism statute, Government Code section 573.041, bars a public official from appointing, or voting to appoint, a relative to a paid position, and bars all members of a board from employing anyone related to any board member within the prohibited degree. The key question was who holds the real hiring authority. Education Code section 130.082(d) gives the junior college board the authority to employ faculty, on the president's recommendation. The opinion read that alongside Pena v. Rio Grande City Consolidated Independent School District, where a court held that a school board's exclusive statutory authority to hire teachers could not be abrogated by a superintendent's recommendation, and that the superintendent was a mere employee or agent, not an "officer" under the nepotism rules.

Applying that logic, the opinion concluded the board members are the public officials with final statutory authority over employment, so the nepotism law applies to the board. Delegating the hiring task to the president did not "abdicate" the board's statutory authority or control, and so did not insulate the board from the nepotism prohibition. Even though the board might never actually vote on hiring the adjunct, the statute applies as if it did. The result: Del Mar College's board could not hire an adjunct instructor related to a board member within a prohibited degree.

Currency note

This opinion was issued in 2006. 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 opinion itself notes that changes to the Education Code since Pena was decided mean that case's reasoning no longer applies in all school districts, and the nepotism and junior college statutes have continued to evolve. Anyone facing a nepotism question today should check the current Government Code chapter 573 and the governing board's current statutory authority rather than rely on this opinion.

Who this opinion affected (as of 2006)

Junior college boards of regents and trustees: The opinion told them they are "public officials" under the nepotism law because they hold final statutory authority to employ faculty, and that delegating hiring to a president does not let the board sidestep the nepotism prohibition.

College presidents and administrators: It treated the president as the board's agent or employee, not an independent officer, so the president's recommendation or delegated hiring did not move the nepotism analysis off the board.

Relatives of board members seeking college jobs: It meant a person related within a prohibited degree to a regent could not be hired by the college, even for an adjunct position, regardless of who signed off on the hire.

Common questions

Who does the Texas nepotism law actually apply to?
According to the opinion, the officials who hold final statutory authority over employment decisions. For a junior college, that is the board members, because the Education Code vests employment authority in the board.

Can a board avoid the law by letting the president do the hiring?
No. The opinion concluded that delegating hiring to the president does not "abdicate" the board's statutory authority or control, so the nepotism law still applies to the board as if it voted on the hire.

Is the college president covered by the nepotism law?
The opinion treated the president as an employee or agent of the board, like the superintendent in Pena, not a "public official" with independent hiring authority under the nepotism statute.

What was the penalty for a nepotism violation at the time?
The opinion noted that an individual who violated the provision was subject to removal and a charge of an offense involving official misconduct under Government Code sections 573.081 and 573.084.

Background and statutory framework

Government Code section 573.041 prohibits a public official from appointing, confirming, or voting to appoint a relative within a degree described by section 573.002 to a position compensated from public funds, and prohibits a board member from voting for the appointment of someone related to another board member within that degree (Tex. Gov't Code Ann. §§ 573.041, 573.002 (Vernon 2004)). A "public official" includes "an officer or member of a board of this state or of a district, county, municipality, school district, or other political subdivision" (id. § 573.001(3)(B)). Violations carry removal and an official-misconduct charge (id. §§ 573.081, .084).

Del Mar College is governed by Education Code chapter 130, which applies to junior college districts (Tex. Educ. Code Ann. ch. 130 (Vernon 2002 & Supp. 2005)). Section 130.082(d) authorizes the board to appoint or employ agents, employees, and officials, and to employ a president and, on the president's recommendation, faculty and other employees (id. § 130.082(d)). Board members are elected to six-year terms, and the junior college board is governed by the law applicable to independent school district boards to the extent applicable (id. §§ 130.082(e), 130.084).

The opinion turned on Pena v. Rio Grande City Consolidated Independent School District, 616 S.W.2d 658 (Tex. Civ. App.-Eastland 1981, no writ), where the court held that a school board has the exclusive right and sole legal authority to employ teachers, that a superintendent's recommendation cannot abrogate that authority, and that a superintendent is a mere employee or agent rather than an "officer" under the nepotism provisions. The opinion noted Pena had relied on Education Code sections later repealed and reenacted (Act of June 2, 1969, 61st Leg., R.S., ch. 889; Act of May 27, 1995, 74th Leg., R.S., ch. 260), and that because of those changes Pena's conclusion no longer applies in all school districts (citing Tex. Att'y Gen. Op. No. GA-0123 (2003)). Reading section 130.082(d) with Pena, the opinion concluded the board holds final hiring authority, the president is its agent, and the board's delegation of hiring to the president does not insulate the board from the nepotism law. It therefore concluded Del Mar College's board may not hire an adjunct instructor related to a board member within a prohibited degree.

Citations

Statutes:

• Tex. Gov't Code Ann. §§ 573.001(3)(B), 573.002, 573.041, 573.081, .084 (Vernon 2004)
• Tex. Educ. Code Ann. ch. 130; §§ 130.082(d), 130.082(e), 130.084 (Vernon 2002 & Supp. 2005)
• Act of June 2, 1969, 61st Leg., R.S., ch. 889; Act of May 27, 1995, 74th Leg., R.S., ch. 260

Cases:

• Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658 (Tex. Civ. App.-Eastland 1981, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0415
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0415.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

March 15, 2006

The Honorable Carlos Valdez
District Attorney
105th Judicial District
Nueces County Courthouse
901 Leopard, Room 206
Corpus Christi, Texas 78401-3681

Opinion No. GA-0415

Re: Whether the nepotism statute applies to a junior college district's employment of a person related to a member of the district's board of regents (RQ-0401-GA)

Dear Mr. Valdez:

You ask whether the nepotism statute, Government Code chapter 573, prohibits Del Mar College ("the college"), a two-year institution of higher education in Corpus Christi, from hiring an adjunct instructor who is related within a prohibited degree to a member of the College Board of Regents (the "board").[1] The college is governed by Education Code chapter 130, which applies to junior college districts. See Request Letter, supra note 1, at 3; see also TEX. EDUC. CODE ANN. ch. 130 (Vernon 2002 & Supp. 2005).

The nepotism statute prohibits public officials from employing individuals who are related to them within a certain degree of affinity or consanguinity. It provides in part:

A public official may not appoint, confirm the appointment of, or vote for the appointment or confirmation of the appointment of an individual to a position that is to be directly or indirectly compensated from public funds or fees of office if:

(1) the individual is related to the public official within a degree described by Section 573.002; or

(2) the public official holds the appointment or confirmation authority as a member of a state or local board, the legislature, or a court and the individual is related to another member of that board, legislature, or court within a degree described by Section 573.002.

TEX. GOV'T CODE ANN. § 573.041 (Vernon 2004); see also id. § 573.002 (degrees of relationship by affinity or consanguinity subject to chapter 573). Section 573.041 prohibits an individual public official from employing a relative within a degree described by Government Code section 573.002, and it prohibits all board members from employing an individual related to any board member within such prohibited degree. An individual who violates this provision is subject to removal and a charge of committing an offense involving official misconduct. See id. §§ 573.081, .084.

You state that the adjunct instructor is related within a prohibited degree to a member of the college board, but you argue that the board does not "appoint, confirm the appointment of, or vote for the appointment or confirmation of the appointment" of an adjunct instructor because the college president exercises that authority. Id. § 573.041. A board policy states that the board has delegated full power and authority to the president "to manage, control, and operate the college, except to the extent that such authority is required by law to be reserved to the Board," including authority to "employ faculty and all other employees of the district." DEL MAR COLLEGE, MANUAL OF POLICIES AND PROCEDURES, Modified to show only Board of Regents directed policies, ch. II, B2.3.1, B2.3.1.12 (updated July 7, 2004), available at http://www.delmar.edu/policymanual/boardpolicy/. You maintain that "the only person to whom the nepotism statutes apply in the normal course of board action would be the president of the college, who is responsible for employing faculty and other employees." Request Letter, supra note 1, at 2.

Education Code section 130.082 vests employment authority in the board. It provides in part that:

Said board shall be authorized to appoint or employ such agents, employees, and officials as deemed necessary or advisable to carry out any power, duty, or function of said board; and to employ a president, dean, or other administrative officer, and upon the president's recommendation to employ faculty and other employees of the junior college.

TEX. EDUC. CODE ANN. § 130.082(d) (Vernon 2002).

Section 130.082(d), read in connection with the decision in Pena v. Rio Grande City Consolidated Independent School District, answers your question. See Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658 (Tex. Civ. App.-Eastland 1981, no writ). In Pena, the school district superintendent's wife had been employed by the school district, and at issue was whether the superintendent was a school district official subject to the nepotism prohibition. See Pena, 616 S.W.2d 658. The court noted that the trustees had exclusive statutory authority to manage and govern the school and to employ teachers and administrators. It continued as follows:

We think it is apparent from the above quoted sections of the Texas Education Code[2] that the board of trustees has the exclusive right and sole legal authority to appoint or employ teachers . . . . A superintendent's recommendation to the school board concerning the appointment of teachers, even when consistently followed, cannot abrogate or limit the exclusive authority granted by statute to the board of trustees.

Pena, 616 S.W.2d at 659. Moreover, "[a] superintendent is merely an employee or agent of the school board, and is not an 'officer'" under the nepotism provisions. Id. The superintendent "merely performs functions delegated to him by the trustees who do not by such delegation abdicate their statutory authority or control." Id. at 660.

Pena establishes generally that the nepotism statute applies to the officials with final statutory authority over employment decisions. As stated in Pena, the nepotism law applies to a "public official," defined to include "an officer or member of a board of this state or of a district, county, municipality, school district, or other political subdivision of this state." TEX. GOV'T CODE ANN. § 573.001(3)(B) (Vernon 2004). A member of a junior college board of trustees holds a public office and is thus a "public official" within the nepotism law. See TEX. EDUC. CODE ANN. § 130.082(e) (Vernon 2002) (election of board members to six year term); 130.084 (junior college district board shall be governed by law governing independent school districts to the extent applicable); see also Tex. Att'y Gen. LO-92-43 (junior college trustees are subject to the nepotism law).

In contrast to the junior college trustees, the president is an employee or agent of the board and not a "public official" within the nepotism law. See Tex. Att'y Gen. LO-92-43. Like the superintendent in Pena, the junior college president has no statutory authority to hire faculty or other employees absent board approval. Section 130.082(d) vests authority to employ faculty and other employees in the board. See TEX. EDUC. CODE ANN. § 130.082(d) (Vernon 2002). The board members' delegation of employment authority to the college president does not "abdicate their statutory authority or control." See Pena, 616 S.W.2d at 660; Tex. Att'y Gen. Op. No. GA-0073 (2003) at 3 (because a university board of regents has exclusive hiring authority, the board members are public officials subject to the nepotism statute); DM-2 (1991) at 1 (applicability of the nepotism law depends on whether the officer may exercise control over hiring decisions); see also Tex. Att'y Gen. Op. No. GA-0123 (2003) at 4 (nepotism provisions do not apply to school board that has delegated final hiring authority to superintendent pursuant to express statutory authority). Although the board may not actually vote on employing the adjunct instructor, the nepotism statute applies as if it does.

Because the legislature has vested in the Board of Del Mar College final authority to employ faculty members and other employees, the state nepotism law prohibits the board from hiring as an adjunct instructor an individual related to a board member within a prohibited degree. See TEX. GOV'T CODE ANN. § 573.041 (Vernon 2004).

SUMMARY

A nepotism provision, Government Code section 573.041, prohibits Del Mar College from employing an adjunct instructor who is related within a prohibited degree to a member of the college district's Board of Regents. The board's delegation of employment authority to the college president does not insulate the board from the application of the nepotism law.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

Footnotes

1. Letter from Honorable Carlos Valdez, District Attorney, 105th Judicial District, to Honorable Greg Abbott, Attorney General of Texas (Oct. 4, 2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. Pena cited Education Code sections 23.26(b) and 23.28(a), which were adopted in 1969 and repealed in 1995. See Act of June 2, 1969, 61st Leg., R.S., ch. 889, § 23.28, 1969 Tex. Gen. Laws 2735, 2954 (adopting the Texas Education Code). See also Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 58(a)(1), 1995 Tex. Gen. Laws 2207, 2498 (repealing Education Code chapters 1 through 31 and 36). Section 23.26(b) was reenacted as Education Code section 11.151(b) and section 23.28 was revised and reenacted in part as section 11.201(b). See Act of May 27, 1995, supra, § 1, 1995 Tex. Gen. Laws 2207, 2227, 2230.

3. Because of changes in the Education Code since Pena was handed down, its reasoning and conclusion no longer apply in all school districts. See generally Tex. Att'y Gen. Op. No. GA-0123 (2003).