DBE(LEGAL) - EMPLOYMENT REQUIREMENTS AND RESTRICTIONS: NEPOTISM

Definition

In this policy, the term "appoint" includes appointing, confirming the appointment of, and voting to appoint or confirm the appointment of a person.

Nepotism Prohibited

Except as provided by this policy, a public official may not appoint a person to a position that is to be directly or indirectly compensated from public funds or fees of office if:

The person is related to the public official by consanguinity (blood) within the third degree or by affinity (marriage) within the second degree [see below]; or

The public official holds the appointment or confirmation authority as a member of a local board and the person is related to another member of the board by blood or marriage within a prohibited degree.

Gov't Code 573.002, .041; Atty. Gen. Op. JC-184 (2000)

Independent Contractor

The nepotism law governs the hiring of an individual, whether the employee is hired as an individual or an independent contractor. Atty. Gen. Op. DM-76 (1992)

Superintendent

Counties with Population 35,000 or More

In a district located wholly in, or whose largest part is located in, a county with a population of 35,000 or more, if, under the employment policy [see DC], a board delegates to the superintendent the final authority to select district personnel:

The superintendent is a public official for purposes of the nepotism prohibitions only with respect to a decision made under that delegation of authority; and

Each member of the board remains subject to the nepotism prohibitions with respect to all district employees.

For purposes of this provision, a person hired by a district before September 1, 2007, is considered to have been in continuous employment [see CONTINUOUS EMPLOYMENT, below] and is not prohibited from continuing employment with the district subject to the abstention requirements.

Education Code 11.1513(f)–(h)

Counties with Population Less Than 35,000

In a district located wholly in, or whose largest part is located in, a county with a population of less than 35,000, to the extent a board has delegated final hiring authority to a superintendent to select personnel [see DC], the superintendent is a "public official" for purposes of the nepotism laws. Atty. Gen. Op. GA-123 (2003) [See BBFB]

Compensation of Prohibited Employee

A public official may not approve an account or draw or authorize the drawing of a warrant or order to pay the compensation of an ineligible person if the official knows the person is ineligible. Gov't Code 573.083

Consanguinity

Two persons are related to each other by consanguinity (blood) if one is a descendant of the other or if they share a common ancestor. An adopted child is considered to be a child of the adoptive parents for this purpose. Gov't Code 573.022

An individual's relatives within the third degree by consanguinity are the individual's:

Parent or child (first degree);

Brother, sister, grandparent, or grandchild (second degree); and

Great-grandparent, great-grandchild, aunt or uncle (who is a sibling of a parent of the person), nephew or niece (who is a child of a brother or sister of the person) (third degree).

Gov't Code 573.023(c)

Half-Blood Relatives

There is no distinction under the nepotism statute between half-blood and full-blood relations. Thus, half-blood relationships fall within the same degree as those of the full blood. Atty. Gen. Op. LO-90-30 (1990)

Affinity

Two persons are related to each other by affinity (marriage) if they are married to each other or if the spouse of one of the persons is related by consanguinity to the other person.

The ending of a marriage by divorce or the death of a spouse ends relationships by affinity created by that marriage unless a child of the marriage is living, in which case the marriage is considered to continue as long as a child of that marriage lives. This provision applies to a school board member or officer of a school district only until the youngest child of the marriage reaches the age of 21 years.

Gov't Code 573.024

A husband and wife are related to each other in the first degree by affinity. For other relationships, the degree of affinity is the same as the degree of the underlying relationship by consanguinity. For example, if two persons are related to each other in the second degree by consanguinity, the spouse of one of the persons is related to the other person in the second degree by affinity.

A person's relatives within the second degree by affinity are:

The person's spouse;

Anyone related by consanguinity to the person's spouse within the first or second degree; and

The spouse of anyone related to the person by consanguinity within the first or second degree.

Gov't Code 573.025

Effect of Board Member Resignation

All public officers shall continue to perform the duties of their offices until their successors shall be duly qualified, i.e., sworn in. Until the vacancy created by a board member's resignation is filled by a successor, the board member continues to serve and have the duties and powers of office, and a relative within a prohibited degree of relationship is barred from employment. Tex. Const., Art. XVI, Sec. 17; Atty. Gen. Ops. JM-636 (1987), DM-2 (1991), O-6259 (1945)

Exceptions

Continuous Employment ("Grandfather Clause" )

The nepotism prohibitions do not apply to the appointment of a person to a position if the person is employed in the position immediately before the election or appointment of the public official to whom the person is related in a prohibited degree and that prior employment is continuous for at least:

Thirty days, if the public official is appointed; or

Six months, if the public official is elected.

Gov't Code 573.062(a)

Retirees

A teacher who has retired from a full-time, certified teacher position has broken his or her employment with a district and does not qualify for the continuous-employment exception to the nepotism laws. Atty. Gen. Ops JC-442 (2001)

For purposes of calculating the appropriate date for the applicability of the continuous-employment exception, a superintendent with final authority to select personnel is an appointed public official. Atty. Gen. Op. GA-177 (2004)

Abstention

If an employee continues in a position under this exception, the public official to whom the employee is related in a prohibited degree may not participate in any deliberation or voting on the appointment, reappointment, employment, reemployment, change in status, compensation, or dismissal of the employee, if the action applies only to the employee and is not taken regarding a bona fide class or category of employees. Gov't Code 573.062(b)

A "change in status" includes a reassignment within an organization, whether or not a change in salary level accompanies the reassignment. Atty. Gen. Op. JC-193 (2000)

For an action to be "taken with respect to a bona fide category of employees," the officeholder's action must be based on objective criteria, which do not allow for the preference or discretion of the officeholder. Atty. Gen. Op. DM-46 (1991)

Substitute Teacher

The nepotism prohibitions do not apply to appointment or employment of a substitute teacher. Gov't Code 573.061

Bus Driver

Counties with Population Less Than 35,000

In a district located wholly in, or whose largest part is located in, a county with a population of less than 35,000, the nepotism prohibitions do not apply to an appointment or employment of a bus driver. Gov't Code 573.061(4)

Trading

A public official may not appoint a person to a position in which the person's services are under the public official's direction or control and that is to be compensated directly or indirectly from public funds or fees of office if:

The person is related to another public official within the prohibited degree; and

The appointment would be carried out in whole or in partial consideration for the other public official's appointing a person who is related to the first public official within a prohibited degree.

Gov't Code 573.044

Federal Funds

The rules against nepotism apply to employees paid with public funds, regardless of the source of those funds. Thus, the rules apply in the case of a teacher paid with funds from a federal grant. Atty. Gen. L.A. No. 80 (1974)

Penalties

An individual who violates the nepotism prohibitions shall be removed from his or her position. Gov't Code 573.081, .082

An individual who violates Government Code 573.041 [see NEPOTISM PROHIBITED], 573.062(b) [see CONTINUOUS EMPLOYMENT and ABSTENTION], or 573.083 [see COMPENSATION OF PROHIBITED EMPLOYEE] commits an offense involving official misconduct. Gov't Code 573.084

Morgan Mill ISD

DBE(LEGAL)-P

UPDATE 82

DATE ISSUED: 1/10/2008