Texas Lone Star

Legal News: A family affair

Timely tips for understanding and avoiding nepotism
by Kristi Clark

Each spring, board members and school personnel across the state begin to focus on elections and employment decisions for the next school year. Although these two issues seem unrelated in many respects, they are necessarily intertwined by the laws of Texas pertaining to nepotism.

Ignorance of these laws may prove devastating to the unwary, but a basic understanding of this subject can preserve family relations and the livelihood of those involved. To facilitate that understanding, this article answers several frequently asked questions about nepotism.

Q: What is nepotism, and why is it against the law?

A: Nepotism is defined as “favoritism (as in appointment to a job) based on kinship.” Merriam-Webster Online: Collegiate Dictionary, http://www.merriam-webster.com/dictionary.htm (25 Feb. 2002). The nepotism laws in Texas are found in Chapter 573 of the Government Code. Under these laws, a public official—including a school district trustee—may not vote to appoint or to confirm the appointment of an individual who is related to the public official by blood or marriage within a prohibited degree. Tex. Gov’t Code §§573.002 & 573.041. This prohibition exists to prevent family relationships from unduly influencing public employment relationships and decision making.

Q: Does the nepotism prohibition apply to superintendents and principals?

A: Generally, no. Because the authority to hire and fire employees is vested in the board of trustees, the superintendent and principal are not public officers for purposes of the nepotism statutes. Pena v. Rio Grande Consol. Indep. Sch. Dist., 616 S.W.2d 658 (Tex. Civ. App.—Eastland 1981, no writ); Op. Tex. Att’y Gen. No. DM-132 (1992).

Q: What district positions are subject to the nepotism prohibition?

A: The prohibition applies to positions compensated directly or indirectly with public funds, regardless of the source of those funds. Thus, the rules apply to all district employees, including those paid with funds from a federal grant. Tex. Att’y Gen. LA-80 (1974).

In addition, the prohibition applies equally to full-time employees, part-time employees, and temporary employees. Finally, the nepotism prohibition also applies to the hiring of a natural person as an independent contractor. Op. Tex. Att’y Gen. No. DM-76 (1992).

Q: Can a board member avoid the nepotism laws by abstaining and allowing the remaining trustees to employ his or her relative?

A: No. Likewise, it is illegal to evade the nepotism prohibition by “trading”—a board member employing the relative of a person subject to the nepotism statute in return for that person employing the board member’s relative, when neither employer could legally employ his or her own relative. Tex. Gov’t Code §573.044.

Q: What if a board member resigns so a relative may be hired?

A: Board members often resign so that the school district may hire the board member’s relative. It is important to remember, however, that all public officers continue to perform the duties of their offices until replaced by their successors. Hence, until the vacancy created by a board member’s resignation is filled by a successor and the successor has taken the oath of office, the board member continues to serve and a relative within a prohibited degree of relationship cannot be employed. Tex. Const. art. XVI, §17; Op. Tex Att’y Gen. No. JM-636 (1987).

Thus, to avoid nepotism, the board member must first resign; the vacant seat must be filled by appointment or special election; the new board member must take the oath of office; then, and only then, the former board member’s relative may be hired.

Q: What relationships are subject to the nepotism prohibition?

A: The nepotism provisions apply to the employment of an individual related to a board member by blood (“consanguinity”) within the third degree or by marriage (“affinity”) within the second degree. Tex. Gov’t Code §§573.002 & 573.041.

Two people are related by consanguinity if one is a descendant of the other or if they share a common ancestor. Tex. Gov’t Code §573.022(a). When one individual is a descendant of another, the degree of relationship between them is calculated by counting the number of generations that separate them.

When neither individual is descended from the other, the degree of relationship between them is determined by adding the number of generations between one individual and the nearest common ancestor to the number of generations between the second individual and that nearest common ancestor. Tex. Gov’t Code §573.023.
For purposes of determining a relationship by consanguinity, an adopted child is treated as a natural child of the adoptive parents. Tex. Gov’t Code §573.022(b).

On the other hand, two people are related by affinity if they are married to each other or if the spouse of one is related by blood to the other. Tex. Gov’t Code §573.024. A husband and wife, for instance, are related to each other in the first degree by affinity. For other relationships, the degree of relationship by affinity is the same as the degree of the underlying relationship by consanguinity. Tex. Gov’t Code §573.025.
Death or divorce of a spouse ends relationships by affinity unless a child of the marriage is living, in which case, for school board members, the affinity relationship continues until the youngest child of the marriage reaches the age of 21. Tex. Gov’t Code §573.024(b), (c).

An affinity relationship exists only when one marriage links two individuals. If two or more marriages link the individuals, then there is no affinity relationship. For example, there is no nepotism prohibition on the hiring of a board member’s spouse’s sister’s husband because the board member and prospective employee are linked by two marriages.

Q: What is the “continuous employment exception”?

A: This is the most often used exception to the nepotism prohibition. Under this exception, the nepotism prohibition does not apply to a district employee who is employed in the position immediately before the election or appointment of the board member to whom the individual is related in a prohibited degree and that prior employment is continuous for at least six months before the board member’s election or 30 days before the board member’s appointment. Tex. Gov’t Code §573.062(a).

“Continuous” employment means employment uninterrupted in time, connected, and unbroken. Op. Tex. Att’y Gen. No. JC-0185 (2000) (applying the continuous employment exception to a “permanent substitute”).

If an employee continues in a position under the continuous employment exception, the related board member must abstain from any deliberation or voting on the appointment, reappointment, employment, reemployment, change in status, compensation, or dismissal of the employee, unless the action applies to a bona fide class or category of employees. Tex. Gov’t Code §573.062(b).

Q: Can a former employee be rehired under this exception?

A: No, this exception does not allow the re-employment of a former district employee who is related to a board member within a prohibited degree, regardless of the length of prior employment. Tex. Att’y Gen. LO-96-015 (1996). See also Op. Tex. Att’y Gen. No. JC-0442 (2001) (concluding that retired teacher has broken his or her employment with the district and does not qualify for the continuous employment exception).

Q: Can a newly elected board member delay taking the oath of office until the six months is reached?

A: More than 20 years ago the attorney general, interpreting prior law, indicated that such a delay would be acceptable because “prior to taking the oath necessary to qualify, [the person elected] is not a member of the board, the place to which he was elected being held by his predecessor.” Op. Tex. Att’y Gen. No. M-857 (1971). However, prior to relying on this old opinion, one should consult an attorney.

Q: How do the nepotism prohibition and the continuous employment exception apply when a district employee marries a board member’s relative?

A: Several years ago, the attorney general opined that a school district employee may retain his or her position after the employee marries a board member’s relative, if the employee was continuously employed for six months before the election of the board member. According to the attorney general, “[s]ignificantly, under the nepotism statute, prior continuous service is the time served before the board member’s election, not the time served before the marriage.” Op. Tex. Att’y Gen. No. DM-132 (1992).

Therefore, under this opinion, if a teacher marries a board member’s daughter, the teacher may retain his job if he was continuously employed for the requisite period of time prior to the board member’s election or appointment, without regard for the date of the marriage. Nevertheless, a board presented with this situation may wish to seek the advice of the district’s attorney.

Q: Are there any other exceptions to the nepotism prohibition?

A: There are other, more limited exceptions to the nepotism prohibition. For instance, a school district may employ a substitute teacher without considering that person’s relationship to a trustee. Tex. Gov’t Code §573.061(5). Similarly, a school district may employ a bus driver who is related to a trustee if the district is located wholly or primarily in a county with a population of less than 35,000. Tex. Gov’t Code §573.061(4).
The nepotism prohibition also will not preclude a board member’s relative from seeking employment with a private corporation with which the school district does business, if the corporation is responsible for the appointment, supervision, and payment of individual employees placed with the district. Tex. Att’y Gen. LO-95-080 (1995) (allowing the spouse of a school board member to seek employment as a speech pathologist with a private corporation doing business with the school district).

The conflict of interest rules in Chapter 171 of the Local Government Code may, however, apply to such a situation.

Finally, in very unusual circumstances, the nepotism prohibition may not apply to school district trustees, even though the related individual will be paid with district funds. The attorney general concluded in a letter opinion that the nepotism prohibition did not preclude a board member’s nephew from officiating a high school football game. The nepotism prohibition applies only to those officers who may exercise control over hiring decisions, and, in the circumstances described, the trustees could not exercise any control over the choice of game officials. Tex. Att’y Gen. LO-95-012 (1995).

Q: What happens if the nepotism prohibition is violated?

A: Both school board members and district employees face severe consequences for violating the nepotism laws. If a board member knows that an employee is ineligible for employment due to the nepotism prohibition, the district must withhold payment to the employee.

Further, if a nepotism relationship arises during the course of employment, the employed relative must leave his or her position at the end of the current contract term, if employed under a contract, or at the end of the current pay period, if employed at will.

In addition, a public official who intentionally or knowingly violates the nepotism prohibition may be convicted of a misdemeanor that carries a possible fine of not less than $100 or more than $1,000. A court convicting an official of this offense must order the official’s immediate removal from office.

Absent a criminal conviction, a public official who violates the nepotism law may be removed from office in the manner prescribed by law. For instance, a school district trustee could be removed pursuant to a quo warranto proceeding initiated by the local district attorney. Tex. Gov’t Code §§573.081-.084.

Q: Where can I get help answering my tough nepotism questions?

A: Call TASB Legal Services Division at 800-580-5345.

Kristi Clark is a senior TASB attorney.