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The Attorney General has ruled that school districts may not hire close relatives of board members, even if a superintendent with final authority over the selection of personnel made the hiring decision.  The Attorney General, however, recognized an exception to that general rule in school districts located in smaller counties.  Government Code Chapter 573 regulates the employment of a public official’s close relatives to positions within the official’s appointment or confirmation authority.  Under § 573.041, 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 directly or indirectly compensated from public funds if (1) the individual is a close relative of the public official as defined by § 573.002, or (2) the public official holds the appointment authority as a member of a state or local board and the individual is related to another member of that board within a degree described by § 573.002.  A person who violates the nepotism provisions shall be removed from their position and commits an offense involving “official misconduct” punishable by a fine of up to $1,000. 

Commissioner of Education Robert Scott recently asked the Attorney General whether Education Code § 11.151(3) and Government Code Chapter 573 prohibit school districts from employing relatives of members of a school district board of trustees when the board has delegated final authority for the selection of personnel to the superintendent. 

In 2003, the Attorney General determined that under the nepotism laws then in place, a superintendent was not a “public official” under Government Code § 573.041 and, thus, could employ a relative of a board member if the superintendent had been delegated final authority to select personnel.  However, following that ruling, the Legislature enacted Education Code § 11.1513(f), which states that when a superintendent is granted final authority for the selection of district personnel (1) the superintendent is a public official for purposes of Government Code Chapter 573 with respect to employment decisions made under that authority, and (2) each member of the board of trustees remains subject to Chapter 573 with respect to all district employees.

Looking to the plain meaning of Education Code § 11.1513(f) and Government Code § 573.041, the Attorney General concluded that a school district is prohibited from hiring, either through its board or a superintendent to whom final selection of personnel is delegated, persons related to board members within the degrees described in Government Code Chapter 573.  However, Education Code § 11.1513(g) provides an exception to the nepotism rules.  According to the Attorney General, the provisions do not prohibit a superintendent with final hiring authority from employing a relative of a board member if the school district is located (1) wholly in a county with a population of less than 35,000, or (2) in more than one county, if the county in which the largest portion of the district is located has a population of less than 35,000.

With respect to the criminal penalties under the statute, the Attorney General concluded that the Education Code was not clear as to whether the criminal penalties would apply to board members or a superintendent with final authority for the selection of personnel who hires a relative of a board member.  According to the Attorney General, penal statutes must be sufficiently clear to inform those who are subject to it what conduct would render them liable to criminal penalties.  Because Government Code Chapter 573 was not clear, a decision could not be reached on whether the superintendent or the board members could be subject to criminal penalties under the nepotism laws.   

The Attorney General Opinion is GA-0794 (2010) and was released on August 26, 2010.  To view the opinion, click here:
http://www.oag.state.tx.us/opinions/opinions/50abbott/op/2010/htm/ga-0794.htm