Can a city promote a longtime police officer whose parent was recently elected to the city council, despite nepotism rules?

Plain-English summary

A state senator asked the Attorney General whether the City of Azle could promote a police lieutenant to chief when the lieutenant's mother had recently joined the city council. The lieutenant had been continuously employed in his position since 1997. In October 2001, the city manager promoted him to chief, about five months after his mother was elected to the council. Azle's city charter (section 11.03) contains a strict nepotism rule barring anyone related within the third degree of consanguinity to an elected city officer or the city manager from being appointed to any city office or position. A son is related to his mother in the first degree, so on its face the charter would have blocked the promotion.

The Attorney General concluded the promotion was nonetheless permissible because of the "continuous service" or "grandfather" exception to the state nepotism law, found in section 573.062 of the Government Code. That exception applies when the relative was already employed in the position immediately before the official's election and had served continuously for the required minimum (six months where the official won a non-general election). The lieutenant had served almost four years before his mother's election, so the exception applied. Crucially, section 573.062 says the exception overrides not only section 573.041 (the state nepotism statute) but also "a municipal charter or ordinance." Because the statute spoke with the "unmistakable clarity" Texas courts require to preempt a home-rule city's authority, it displaced Azle's stricter charter rule. The opinion rejected the argument, raised in an attached letter brief, that section 573.062 did not preempt the charter.

The exception came with a limit. Under section 573.062(b), once a relative continues in a position under the grandfather rule, the related official may not participate in any deliberation or vote on the relative's appointment, promotion, raise, change in status, or dismissal when that action applies only to the individual rather than to a bona fide class of employees. Drawing on its prior opinions, the Attorney General explained that a continuously employed relative may be promoted or given a raise so long as the related official makes no subjective decision about the employee. Here, a separate charter provision (section 3.08) already barred council members from directing the city manager's appointments, so the mother was forbidden from participating. Assuming that rule was followed, the promotion was lawful.

Currency note

This opinion was issued in 2002. 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

The senator and the Legislature (what the opinion held): The opinion held that section 573.062 of the Government Code, by its own terms, overrides a stricter municipal nepotism charter provision when the continuous-service conditions are met, because the statute preempts home-rule charter authority with unmistakable clarity.

The city, the city manager, and the promoted officer (what the opinion held): The opinion held that an employee continuously employed in a position before the related official's election may be promoted or given a raise under the grandfather exception, so Azle's charter did not bar promoting the four-year lieutenant to chief.

The related council member (what the opinion held): The opinion held that the official related to the employee may not participate in any deliberation or vote on an action that applies only to that individual, such as this promotion, and noted a separate charter provision already forbade her participation.

Common questions

Does a nepotism rule always block hiring or promoting a relative of an elected official?
No. Under this opinion, the state law's continuous-service exception (section 573.062) lets an already-employed relative keep the job and even be promoted, if the relative held the position before the official's election and served long enough beforehand.

How long does the relative have to have worked there?
The exception sets a minimum of continuous prior employment; for an official elected at an election other than the general election for state and county officers, six months suffices. The lieutenant here had served nearly four years, well over the minimum.

Can a city charter impose a stricter nepotism rule than the state?
A home-rule charter can be stricter in general, but the opinion concluded that section 573.062 expressly overrides "a municipal charter or ordinance" when its continuous-service exception applies, so the stricter Azle charter rule did not control here.

What is the related official not allowed to do?
Under section 573.062(b), the related official cannot participate in any deliberation or vote on an action affecting only that relative, such as the promotion, raise, or dismissal. The mother on the council was barred from taking part in the promotion decision.

Background and statutory framework

Chapter 573 of the Government Code is the state nepotism law. Section 573.041 forbids a public official from appointing, or voting for the appointment of, a relative within a prohibited degree, and section 573.023 sets the degrees of consanguinity (a son is related to a parent in the first degree). Tex. Gov't Code Ann. § 573.023, § 573.041 (Vernon 1994). A home-rule city's charter may contain nepotism provisions stricter than state law, as the Attorney General had recognized in a prior letter opinion interpreting an identical charter clause, so long as the charter policy is consistent with the anti-favoritism policy of the state statute.

Section 573.062 is the continuous-service or "grandfather" exception. It provides that a nepotism prohibition "prescribed by Section 573.041 or by a municipal charter or ordinance does not apply" to an appointment, confirmation, or vote if the individual was employed in the position immediately before the related official's election or appointment and the prior employment was continuous for at least the stated minimum (six months if the official was elected at an election other than the general election for state and county officers). Subsection (b) then bars the related official from participating "in any deliberation or voting on the appointment, reappointment, confirmation . . . , employment, reemployment, change in status, compensation, or dismissal of the individual" when the action applies only to that individual and not to a bona fide class or category of employees. Tex. Gov't Code Ann. § 573.062 (Vernon 1994). Because the statute is clear and specific that a "municipal charter or ordinance" does not apply in this situation, it preempts the stricter charter, consistent with the rule that legislative preemption of an area usually within a home-rule city's powers requires "unmistakable clarity." Dallas Merchs. and Concessionaires v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993).

Citations

Statutes:

• Tex. Gov't Code Ann. § 573.023 (Vernon 1994)
• Tex. Gov't Code Ann. § 573.041 (Vernon 1994)
• Tex. Gov't Code Ann. § 573.062 (Vernon 1994)

Cases:

• Dallas Merchs. and Concessionaires v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993)

Prior Attorney General materials referenced: Tex. Att'y Gen. Op. Nos. JC-0193 (2000), JC-0185 (2000), JC-0035 (1999), JM-846 (1988); Tex. Att'y Gen. LO-93-30, LO-94-008.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0546
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0546.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

August 28, 2002

The Honorable Ken Armbrister Opinion No. JC-0546
Chair, Committee on Criminal Justice
Texas State Senate Re: Whether the son of a city council member of the
P.O. Box 12068 City of Azle, Texas may be promoted to a higher
Austin, Texas 78711 position in the Azle Police Department (RQ-0520-JC)

Dear Senator Armbrister:

You have asked this office to consider the interaction of certain provisions of the charter of the City of Azle, Texas and chapter 573 of the Texas Government Code's nepotism provision. This office does not ordinarily construe charter provisions in the opinions process. See Tex. Att'y Gen. Op. Nos. JC-0035 (1999) at 2, JM-846 (1988) at 1; Tex. Att'y Gen. LO-94-008, at 2 n.1. However, in this case the question presented may be answered by reference to the provisions of section 573.062 of the Government Code as well as to prior opinions of this office interpreting that section.

As we understand the facts of the situation giving rise to this request, a lieutenant of the Azle Police Department who has been continuously employed in that position since 1997 was promoted by the Azle city manager to the position of chief of police in October 2001, some five months after his mother was elected to the Azle City Council.[1] Questions have arisen as to the propriety of this appointment given that section 11.03 of the charter provides:

No person related within the second degree by affinity, or within the third degree by consanguinity to any elected officer of the City, or to the City Manager, shall be appointed to any office, position[,] or clerkship or other service of the City.

AZLE, TEX., CITY CHARTER § 11.03.[2]

The son of an elected officer is related to that officer in the first degree of consanguinity. See TEX. GOV'T CODE ANN. § 573.023 (Vernon 1994). Taken by itself, the plain language of section 11.03 would prohibit the appointment of the city council member's son to the position of police chief. Section 3.08 of the charter specifically forbids members of the council to direct appointments to office by the city manager. See AZLE, TEX., CITY CHARTER § 3.08 ("Neither the City Council nor any of its members shall direct the appointment of any person to office by the City Manager or by any of his subordinates.").[3] Accordingly, section 11.03, as a nepotism provision, is stricter than section 573.041 of the Texas Government Code, which forbids public officials themselves from making appointments within the prohibited degree. See TEX. GOV'T CODE ANN. § 573.041 (Vernon 1994).

In interpreting a similar municipal charter nepotism provision, the Attorney General determined in 1993 that a home-rule city's charter could contain nepotism provisions more rigorous than those of state law. See Tex. Att'y Gen. LO-93-30, at 1. Letter Opinion 93-30 interpreted language in the charter of the City of Freeport, Texas identical to that in section 11.03. In that opinion, we found that the charter provision, though stricter than was required by what was then article 5996a, section 1(a) of the Revised Civil Statutes and is now section 573.041 of the Government Code, nevertheless was not in conflict with that statute: "[W]e do not believe that the legislature intended to prevent a home-rule city from enacting a nepotism policy stricter than the state nepotism statute, provided that the home-rule city's policy is consistent with the policy against favoritism underlying the state nepotism law." Tex. Att'y Gen. LO-93-30, at 2.

However, the appointment in Letter Opinion 93-30 was of a person who did not have prior continuous service as a police officer in the city. See id. at 2 n.1. The question there was the hiring "as a police officer [of] a son of a veteran city council member." Id. at 1. The question here is the promotion of a veteran city police officer whose mother is a recently elected city council member. Because of this difference, the "grandfather" or "continuous service" exception to the state nepotism law, which was not relevant in Letter Opinion 93-30, is of importance here. That provision is now section 573.062 of the Government Code and reads in relevant part:

(a) A nepotism prohibition prescribed by Section 573.041 or by a municipal charter or ordinance does not apply to an appointment, confirmation of an appointment, or vote for an appointment or confirmation of an appointment of an individual to a position if:

(1) the individual is employed in the position immediately before the election or appointment of the public official to whom the individual is related in a prohibited degree; and

(2) that prior employment of the individual is continuous for at least:

(B) six months, if the public official is elected at an election other than the general election for state and county officers;

(b) If, under Subsection (a), an individual continues in a position, the public official to whom the individual is related in a prohibited degree may not participate in any deliberation or voting on the appointment, reappointment, confirmation of the appointment or reappointment, employment, reemployment, change in status, compensation, or dismissal of the individual if that action applies only to the individual and is not taken regarding a bona fide class or category of employees.

TEX. GOV'T CODE ANN. § 573.062 (Vernon 1994) (emphasis added). See Tex. Att'y Gen. Op. No. JC-0193 (2000) at 3-4 (defining "change in status").

As this office interpreted the language of section 573.062(b) in Attorney General Opinion JC-0185:

An individual who has been continuously employed in [a] position for the requisite duration may not only retain his or her position but may be the subject of an action affecting the employment, such as a promotion or raise, if "the public official to whom the individual is related in a prohibited degree" does not participate in any discussion or vote regarding the individual's status, unless the decision concerns "a bona fide class or category of employees."

Tex. Att'y Gen. Op. No. JC-0185 (2000) at 3 (citing TEX. GOV'T CODE ANN. § 573.062(b) (Vernon 1994)). As we further explained the matter in Attorney General Opinion JC-0193, "a public official may not participate in any action affecting the employment of a relative within a prohibited degree that requires the official to make a subjective decision about the employee." Tex. Att'y Gen. Op. No. JC-0193 (2000) at 4.

In this instance the lieutenant who has been promoted to chief of police had been serving as a lieutenant for nearly four years continuously at the time of his mother's election to the city council.[4] Consequently, the strictures of section 11.03 of the Azle City Charter are inapplicable. See TEX. GOV'T CODE ANN. § 573.062 (Vernon 1994).

It has been suggested in a letter brief attached to the opinion request letter that section 573.062(b) does not preempt the Azle City Charter.[5] However, the language of section 573.062 is clear and specific in providing that "a municipal charter or ordinance" provision such as section 11.03 "does not apply" in such a situation as this. TEX. GOV'T CODE ANN. § 573.062 (Vernon 1994) (emphasis added); see Dallas Merchs. and Concessionaires v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993) (legislative preemption of area usually within powers of home-rule city requires "unmistakable clarity").

In accordance with the reasoning of Attorney General Opinion JC-0185, section 573.062(b) of the Government Code permits the lieutenant to be "the subject of an action affecting [his] employment, such as a promotion or raise," Tex. Att'y Gen. Op. No. JC-0185 (2000) at 3, so long as his mother does not participate in such an action when doing so would require her "to make a subjective decision about" him. Tex. Att'y Gen. Op. No. JC-0193 (2000) at 4. In this case, as we have noted above, section 3.08 of the Azle City Charter specifically forbade her participation in the decision to promote her son. Assuming that section 3.08 was not violated, the promotion of a lieutenant with four years of continuous service on the Azle Police Department to chief of that department is permissible under section 573.062 of the Government Code even though the lieutenant's mother is a member of the Azle City Council.

SUMMARY

In accordance with section 573.062(b) of the Government Code, the promotion of a lieutenant on the Azle Police Department with four years of continuous service to chief of that department is permissible even though the lieutenant's mother has become a member of the Azle City Council, so long as she does not participate in any deliberation or voting on that promotion.

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Jim Tourtelott
Assistant Attorney General, Opinion Committee

[1] See Request Letter from Honorable Ken Armbrister, Chair, Committee on Criminal Justice, Texas State Senate, to Susan Denmon Gusky, Chair, Opinion Committee, Office of the Attorney General (Mar. 6, 2002) and attached Letter Brief from Omniah Z. Ebeid, Texas Municipal League, to Linda Arrington, Azle City Council (Feb. 7, 2002) (on file with Opinion Committee).

[2] See id.

[3] See id.

[4] See id.

[5] See Request Letter, supra note 1, and attached Letter Brief from Betsy Elam, Taylor, Olson, Adkins, Sralla, Elam, L.L.P., to Jerry Guillory, Azle City Manager (Nov. 7, 2001) (on file with Opinion Committee).