Can a Texas police chief promote his nephew to lieutenant when the chief makes the final selection?

Plain-English summary

A county attorney asked whether the Corpus Christi police chief could promote his nephew to lieutenant. Under the collective-bargaining agreement, when a lieutenant position opens, the civil service commission certifies the three top-ranked candidates from an eligibility list, and the chief picks any of the three. The chief's nephew, a senior officer, ranked number two on that list. The opinion concluded the chief could not promote him.

The reason was the state anti-nepotism statute. A sole officeholder who has final authority to appoint, change the status of, or dismiss personnel may not take such an action with respect to a close relative, and a nephew is within the prohibited degree. The chief is a public official with that final authority, so because he would have to exercise discretion in choosing among the three candidates, he could not select his nephew. A promotion counts as a "change in status" under the statute. This tracked an earlier opinion, JC-0193, which had reached the same conclusion about the same police chief and the same nephew in a slightly different situation.

The opinion then answered two follow-up questions. First, the collective-bargaining agreement could be amended to take the final promotion decision away from the chief and give it to another official, such as the city manager, whenever a close relative of the chief is in the running. If that were done, the nepotism statute would not bar the promotion. The opinion cautioned, though, that a voluntary delegation by the chief is not enough; the agreement itself must assign the authority elsewhere. It also warned that other clauses might need amending too, because the chief still could not demote his nephew during the probationary period the way he could other newly promoted lieutenants. Second, if the nephew were promoted, the chief could assign him whatever duties the department's functions required, as long as the assignment did not itself amount to a change in status, which is a fact question the opinion process cannot resolve.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Police chiefs and other sole officeholders (what the opinion held for them): The opinion held that an official with final discretionary authority over a promotion may not select a close relative, including a nephew, because a promotion is a change in status under section 573.062 of the Government Code.

Cities and bargaining units drafting promotion procedures (what the opinion held for them): The opinion held the agreement could be amended to assign the final decision to another official when a chief's relative is eligible, but cautioned that the delegation must be in the agreement itself and that related clauses, such as probationary demotion, might also need changing.

The relative who is eligible for promotion (what the opinion held for them): The opinion held the nephew had to stay in the same position at the same pay while the chief held final authority, unless the agreement was amended or the chief acted on a bona fide class of employees that included the nephew.

Common questions

Why can't a Texas police chief promote a qualified relative?
The opinion explained that the nepotism statute bars a sole officeholder with final appointing authority from taking action on a close relative, and because the chief had to exercise discretion choosing among three candidates, selecting his nephew was prohibited.

Could the rules be changed so the relative can be promoted?
Yes. The opinion said the collective-bargaining agreement could be amended to give the final decision to another official, such as the city manager, when the chief's relative is among the qualified candidates.

Is a voluntary hand-off of the decision enough?
No. The opinion stated that a chief's voluntary delegation does not avoid the nepotism prohibition; the agreement itself must confer the final authority on someone else.

Once promoted, can the chief assign the relative duties?
The opinion concluded the chief could assign a promoted nephew whatever duties the department needed, provided the assignment did not, as a matter of fact, constitute a change in status.

Background and statutory framework

Chapter 573 of the Government Code is the state anti-nepotism law. Section 573.041 bars a public official from appointing a close relative to a paid position, and section 573.062 governs the "continuously employed" relative, providing that a sole officeholder with final authority over personnel actions may not change the status of such a relative. See Tex. Gov't Code Ann. §§ 573.041, 573.062 (Vernon 1994). A nephew is within the prohibited degree of relationship, and a municipal officer is a public official. Id. § 573.001(3)(A). The opinion relied on Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658 (Tex. Civ. App.-Eastland 1981, no writ), for the nondelegable nature of final appointing authority, and on Cain v. State, 855 S.W.2d 714 (Tex. Crim. App. 1993), upholding the statute as applied to sole officeholders. Corpus Christi had adopted the civil service system in chapter 143 of the Local Government Code, but under section 174.006(a) a collective-bargaining contract may prevail over the statutory promotion procedure where it says so, see Gomez v. Brownsville, 976 S.W.2d 291 (Tex. App.-Corpus Christi 1998, pet. denied), and the Corpus Christi agreement expressly altered chapter 143.

Citations

Statutory provisions:

• Tex. Gov't Code Ann. §§ 573.001(3)(A), 573.041, 573.062 (Vernon 1994)
• Tex. Loc. Gov't Code Ann. §§ 143.001, .002, .004, .006, 143.036 (Vernon 1999); 174.006(a)

Cases:

• Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658 (Tex. Civ. App.-Eastland 1981, no writ)
• Cain v. State, 855 S.W.2d 714 (Tex. Crim. App. 1993)
• Gomez v. Brownsville, 976 S.W.2d 291 (Tex. App.-Corpus Christi 1998, pet. denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0336
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0336.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

February 12, 2001

The Honorable Laura Garza Jimenez
Nueces County Attorney
901 Leopard, Room 207
Corpus Christi, Texas 78401-3680

Opinion No. JC-0336

Re: Whether a police chief who has authority under a collective-bargaining agreement to finally select the senior officer who will be promoted to lieutenant may promote his nephew to a vacant lieutenant position, and related questions (RQ-0283-JC)

Dear Ms. Jimenez:

A public official may not promote his or her nephew to a position compensated from public funds if promotion requires the official to finally select the person who will fill the position. See TEX. GOV'T CODE ANN. § 573.041 (Vernon 1994). You ask whether a police chief may promote his nephew to the position of lieutenant, where the promotion requires the chief to select among three qualified persons.[1] He may not.

If the police chief may not promote his nephew to lieutenant, you ask whether the collective-bargaining agreement may be amended to provide that where a close relative of the police chief is eligible to be promoted an official other than the chief selects from among the qualified personnel. See Request Letter, note 1, at 1. The collective-bargaining agreement may be so amended, but the parties to the collective-bargaining agreement also should consider amending the agreement to transfer additional authority over the close relative to another official. You finally ask how, if the nephew may be promoted, initial duties may be assigned to him in light of Attorney General Opinion JC-0193. Id.; see Tex. Att'y Gen. Op. No. JC-0193 (2000). We conclude that the chief may assign any duties he deems necessary to accomplish the police department's duties.

This office will not construe a particular collective-bargaining agreement. See Tex. Att'y Gen. Op. Nos. JC-0193 (2000) at 5; JC-0165 (2000) at 1. We look only at how the statutory nepotism prohibitions apply in the circumstances you describe.

For purposes of the anti-nepotism statutes, a police chief who has, under a collective-bargaining agreement, final authority to appoint, reward, discipline, or demote employees is a public official. See Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658, 659 (Tex. Civ. App.-Eastland 1981, no writ) (stating that public official has nondelegable final authority to appoint); Tex. Att'y Gen. Op. No. JC-0193 (2000) at 3 (stating that City of Corpus Christi police chief is public official under chapter 573, Government Code). Under section 573.062 of the Government Code, a sole officeholder who has final authority to appoint, reappoint, confirm, employ, reemploy, change the status or compensation of, or dismiss personnel may not take any action with respect to a close relative, including a nephew, who has been continuously employed by the office for a certain period of time. See TEX. GOV'T CODE ANN. § 573.062(a), (b) (Vernon 1994); see also id. §§ 573.002, .022, .023 (defining prohibited degree of consanguine relationships); Cain v. State, 855 S.W.2d 714, 718 (Tex. Crim. App. 1993) (en banc) (holding that nepotism statute is not unconstitutional when applied to "sole officeholders"). A public official includes an officer of any political subdivision of this state, including a municipality. TEX. GOV'T CODE ANN. § 573.001(3)(A) (Vernon 1994).

In Attorney General Opinion JC-0193 this office concluded that the Chief of Police for the City of Corpus Christi could not, by transferring his nephew laterally to another division, change the nephew's employment status with the City of Corpus Christi's police department if the change of status requires the Chief to exercise discretion. Tex. Att'y Gen. Op. No. JC-0193 (2000) at 1. That opinion examines whether a reassignment that did not involve a salary change was a "change of status" for the purposes of section 573.062(b) of the Government Code. Id. at 3. You do not raise that issue again.

Having received Attorney General Opinion JC-0193, you now raise supplementary issues based on similar, though not identical, facts. You explain: "The Chief of Police for the City of Corpus Christi has a nephew employed as a Senior Officer within the Police Department. . . . Through a competitive process the nephew ranks number two on the promotional eligibility list for lieutenant in the department." Request Letter, supra note 1, at 1. You list the ranks in the police department "in declining order," as "chief, assistant chief, commander, captain, lieutenant, senior officer, and officer." Id. at 2.

The police department at issue is subject to a collective-bargaining agreement. See Tex. Att'y Gen. Op. No. JC-0193 (2000) at 2 (quoting Letter from Honorable Carl E. Lewis, Nueces County Attorney, to Honorable John Cornyn, Texas Attorney General (July 23, 1999) (on file with Opinion Committee); Agreement Between the City of Corpus Christi and the Corpus Christi Police Officer's Association (Aug. 1, 1998 - July 31, 2000).[2] Under the collective-bargaining agreement, promotions to lieutenant must follow a specific procedure:

The candidates take a written exam. The top 15 continue to an assessment center. An eligibility list is established based on the assessment center weighted at 60% and the written exam at 40%, with up to 10 extra points for years of service. . . . Upon a lieutenant vacancy, the civil service commission certifies the three top names on the list to the chief. The chief may select any of the three. Appeal may be made by a rejected candidate to an arbitrator. A person promoted may be demoted within 365 days of promotion at the discretion of the chief without appeal to the commission.

Id.

The City of Corpus Christi has adopted chapter 143 of the Local Government Code, under which a municipality may implement a civil-service system for fire fighters and police officers. See TEX. LOC. GOV'T CODE ANN. §§ 143.001, .002, .004, .006 (Vernon 1999); Request Letter, supra note 1, at 2. Although chapter 143 establishes a procedure for promoting employees, see id. § 143.036, a local collective-bargaining contract may prevail over the statutory procedure if the contract specifically states that it does, see id. § 174.006(a); Gomez v. Brownsville, 976 S.W.2d 291, 293 (Tex. App.-Corpus Christi 1998, pet. denied). The Agreement between the City of Corpus Christi and the Corpus Christi Police Officer's Association explicitly states that, "[t]o the extent" the collectively bargained promotion procedures "alter any provision of Chapter 143" of the Local Government Code, "Chapter 143 is so altered." Agreement Between the City of Corpus Christi and the Corpus Christi Police Officer's Association art. XIII(F), Aug. 1, 1998 - July 31, 2000.

Because the chief exercises discretion to select from a list of three qualified candidates, we conclude, consistently with Attorney General Opinion JC-0193, that the chief may not promote his nephew to lieutenant. See Tex. Att'y Gen. Op. No. JC-0193 (2000) at 1 ("We conclude that section 573.062(b) of the Government Code prohibits the Chief's final approval if the approval requires an exercise of the Chief's discretion."). A promotion is, as a matter of law, a "change in status" under section 573.062(b). See id. at 3 (discussing dictionary definitions of "change of status"). And, under the current collective-bargaining agreement, the chief is the final decision-maker. In answer to your first question, therefore, the nephew may not be promoted to lieutenant.

In answer to your second question, we conclude that the collective-bargaining agreement may be amended so that the nephew may be promoted, but we urge caution in making any such amendments. Of course, the collective-bargaining agreement may not be amended to permit the police chief to violate the law by, for example, appointing a close relative. As Attorney General Opinion JC-0193 suggests, because the collective-bargaining agreement at issue assigns to the police chief final authority to promote a senior officer to lieutenant, the chief must abstain from promoting a relative who is a senior officer where the promotion permits the chief to exercise discretion. Tex. Att'y Gen. Op. No. JC-0193 (2000) at 3. While the current police chief holds final authority to promote an employee to fill a vacancy, his nephew must remain in the same position, at the same pay, unless the chief takes an action affecting a bona fide class of employees, and the nephew is a member of the class. See TEX. GOV'T CODE ANN. § 573.062(b) (Vernon 1994); Cain, 855 S.W.2d at 718 (rejecting court of appeals' holding).

If the collective-bargaining agreement is amended to take from the chief final authority to decide promotions where the chief's close relative is among the list of those qualified, see Request Letter, supra note 1, at 1, and to give final authority in that instance to another official, such as the city manager, then the anti-nepotism statute would not apply. In that case, the close relative may be promoted. Because you describe only this amendment, we do not consider whether the collective-bargaining agreement may be amended in any other way that would permit the nephew to be promoted.

As you suggest, the collective-bargaining agreement itself must delegate final authority to promote-a police chief's voluntary delegation of the decision to another party does not avoid the application of the anti-nepotism prohibitions. See id. These prohibitions apply to any official who may exercise control over an employment decision. See Tex. Att'y Gen. Op. No. DM-2 (1991) at 1. So long as the collective-bargaining agreement confers upon the police chief final authority to promote senior officers to lieutenant, the police chief's close relative may not be promoted.

In the event that the chief's close relative may be promoted following amendments to the collective-bargaining agreement, the parties to the collective-bargaining agreement may be wise to amend other sections as well. In particular, you state that a senior officer who is promoted to lieutenant "may be demoted within 365 days of promotion at the discretion of the chief without appeal to the" civil-service commission. Request Letter, supra note 1, at 2. But the chief may not demote his nephew without violating section 573.062 of the Government Code. See TEX. GOV'T CODE ANN. § 573.062(b) (Vernon 1994). Unless the collective-bargaining agreement is amended to provide for demoting the close relative within a probationary period, the nephew, once promoted to lieutenant by the city manager or other official, may not be demoted as may other newly promoted lieutenants.

You ask finally how, if the chief's nephew may be promoted under either your first question or your second question, the nephew initially may be assigned duties. "Would he have to be given the same assignment as the lieutenant who vacated the position being filled?" Request Letter, supra note 1, at 1. We conclude that the chief generally may assign the newly promoted nephew any duties he deems necessary to accomplishing the department's functions. A change of assignment must not, however, constitute a change in status as a matter of fact.

The chief may allocate and reallocate duties among his related and non-related employees as he wishes, so long as changed assignments do not change the status of a related employee. Section 573.062 of the Government Code contemplates that a public official may retain as an employee a close relative who has been continuously employed in a certain position for a period of time before the public official was appointed or elected to office-an employee whom the official could not hire under the anti-nepotism prohibition. See TEX. GOV'T CODE ANN. §§ 573.062(a), .041 (Vernon 1994). The legislature envisioned, therefore, that a public official and a related, continuously employed employee would have a way to work together, so that the public official could assign duties as necessary, without changing the related employee's status under section 573.062(b). (We assume that a collective-bargaining agreement may limit the chief's authority to assign tasks, but we do not consider whether the collective-bargaining agreement that you have sent does so.) Any other conclusion would prove unworkable for the public official and the office he or she serves.

Whether a particular change in assignment constitutes a change in status for the purposes of the anti-nepotism statute is a question of fact that cannot be resolved in the opinion process. See Tex. Att'y Gen. Op. Nos. JC-0298 (2000) at 1 (stating that we cannot resolve fact dispute); JC-0020 (1999) at 2 (investigating and resolving fact questions "cannot be done in the opinion process"); DM-98 (1992) at 3 ("[Q]uestions of fact . . . cannot be resolved in the opinion process.").

As Attorney General Opinion JC-0193 indicates, a change in status "varie[s] the conditions" of an employee's employment. See Tex. Att'y Gen. Op. No. JC-0193 (2000) at 3-4. We recognize that the opinion unfortunately suggests that a "reassignment" is encompassed within "change of status": "In our opinion, the phrase 'change in status' includes a reassignment within an organization, whether or not a change in salary level accompanies the reassignment." Id. at 3. The reassignments at issue there, however, involved interdepartmental transfers, complete with changes from uniformed status to plain-clothes status, among other things. See id. at 2. An assignment of duties within a department need not constitute a change of status if the changes are not of the same magnitude as those described in Attorney General Opinion JC-0193. See id. at 3-4.

SUMMARY

A police chief who, under a collective-bargaining agreement, exercises discretion to finally select from a list of three qualified senior officers one person to promote to lieutenant, may not select his nephew. See TEX. GOV'T CODE ANN. § 573.062(b) (Vernon 1994). A collective-bargaining agreement may be amended to take from the chief final authority to decide promotions where the chief's close relative is among the list of those qualified and to give final authority in that instance to another city official. If a collective-bargaining agreement is so amended, the nephew may be promoted by the other official to lieutenant. The police chief may allocate duties among lieutenants, including a newly promoted nephew, as he or she deems necessary to accomplish the functions of the office. A changed assignment may not, as a matter of fact, change the related employee's status.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee