Can a Tennessee district public defender hire his brother-in-law as an investigator if he's not the direct supervisor?

Subject

Opinion No. 12-61, Application of the Tennessee State Employees Uniform Nepotism Policy Act, June 7, 2012

Plain-English summary

District Public Defender Mark Stephens of Knoxville asked the Tennessee AG whether an internal supervisory structure could rescue an employment arrangement from the Tennessee State Employees Uniform Nepotism Policy Act of 1980. The specific situation: a district public defender hires his brother-in-law as an investigator. The brother-in-law works on DUI cases through an internal case-management system. His immediate supervisor is the attorney DUI Vertical Team Leader. The Team Leader reports to a deputy public defender. The deputy reports to the district public defender. The district public defender does not himself supervise the brother-in-law or do his performance reviews.

The AG concluded the arrangement still violated the Nepotism Act. The district public defender is given statutory authority to "hire and fire, at his or her pleasure" all assistant public defenders and district investigators (Tenn. Code Ann. § 8-14-202(b)(2), (3)). That puts the brother-in-law in the "direct line of supervision" of the district public defender, regardless of layered organizational structures. The Act's protection against favoritism (and its appearance) cannot be evaded by delegation.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG 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.

Historical background and statutory framework

The Nepotism Act

Tenn. Code Ann. § 8-31-103 provides:

[W]ithin each governmental entity, no state employees who are relatives shall be placed within the same direct line of supervision whereby one (1) relative is responsible for supervising the job performance or work activities of another relative; provided, that to the extent possible, the provisions of this chapter shall not be construed to prohibit two (2) or more such relatives from working within the same governmental entity.

District public defender's offices are "governmental entities" under § 8-31-102(1) and their personnel are "state employees" under § 8-31-102(3). "Relatives" defined under § 8-31-102(2) includes a brother-in-law.

Purpose

Wright v. Metro Health Medical Center (6th Cir. 1995) described nepotism statutes as designed to avoid conflicts of interest between work and family obligations and to reduce favoritism or the appearance of favoritism. The Tennessee Senate sponsor's floor statement in 1980 captured the principle: "if they're in the direct line of supervision . . . if one of them is the other's boss then I think it's a bad situation" (Senate Bill 2217, March 24, 1980).

Hire/fire authority puts the relative in the direct line

Tenn. Code Ann. § 8-14-202(b)(3) gives the district public defender authority to hire and fire district investigators "at his or her pleasure." Subsection (b)(2) gives the same authority over assistant public defenders. So even when the brother-in-law's day-to-day supervisor is the DUI Vertical Team Leader and his performance reviews come from that Team Leader, the district public defender stands above the entire chain. The district public defender hires and fires the assistant public defender who supervises the Team Leader.

Earlier AG opinions on similar facts

Op. Tenn. Att'y Gen. 06-101 (June 14, 2006) addressed a district director who had delegated supervision of his wife to subordinates. The AG concluded the Act was still violated because the husband, as director of the regional office, "remained responsible for supervising his wife's job performance."

Op. Tenn. Att'y Gen. 04-113 (July 12, 2004) addressed a state-park hospitality manager whose sister-in-law worked as a servitor at his park. The AG concluded there was no violation if the hospitality manager 3 did not directly supervise the servitor and his directions to all park employees were not specifically about her. But in a hypothetical where the hospitality manager 3 supervised the person who evaluated the servitor, the Act would be violated because the manager would be in the "direct line of supervising" his sister-in-law's job performance.

Application

The AG opinion sums up the rule succinctly: "if one relative supervised the person responsible for doing evaluations of the other relative, the Act would be violated" (quoting Op. 06-101 at 2). And: "[t]he district public defender is ultimately responsible for and in control of his or her office, and the employees in that office cannot be the district public defender's relatives as defined by the Nepotism Act."

Common questions

Can the public defender just have someone else do the hiring and firing for that role?

The statute gives hire/fire authority to the district public defender as a matter of law (§ 8-14-202(b)(2), (3)). The district public defender cannot delegate the legal authority away. The AG opinion treats that statutory authority as putting the relative in the direct line of supervision.

What if the district public defender recuses himself from anything involving the brother-in-law?

The AG's earlier opinions and this one treat recusal as insufficient. The Act's purpose is to prevent both actual favoritism and its appearance, and recusal at one level does not address the fact that the relative remains in the chain of command.

Can the brother-in-law work somewhere else in the office on cases the district PD has nothing to do with?

The relevant test is the direct line of supervision over the relative's job performance. If the district public defender has hire/fire authority and supervises the entire management chain leading to the relative, the Nepotism Act applies regardless of which cases the relative handles.

What's a "relative" under the Act?

Defined at Tenn. Code Ann. § 8-31-102(2). The opinion notes that a brother-in-law qualifies. The full list covers spouses, parents, children, siblings, in-laws of those categories, and similar relationships.

Does this apply only to direct supervisor-subordinate pairings?

No. The rule covers being in the "same direct line of supervision." Two relatives can work in the same agency as long as one is not in the direct chain over the other.

Citations

• Tenn. Code Ann. §§ 8-14-201 to -212 (district public defenders)
• Tenn. Code Ann. § 8-14-202(b)(2), (3) (hire/fire authority)
• Tenn. Code Ann. §§ 8-31-101 to -107 (Nepotism Act)
• Tenn. Code Ann. § 8-31-102 (definitions)
• Tenn. Code Ann. § 8-31-103 (prohibition)
• Wright v. Metro Health Medical Center, 58 F.3d 1130 (6th Cir. 1995)
• Op. Tenn. Att'y Gen. 06-101 (June 14, 2006)
• Op. Tenn. Att'y Gen. 04-113 (July 12, 2004)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-061.pdf

Original opinion text

June 7, 2012
Opinion No. 12-61
Application of the Tennessee State Employees Uniform Nepotism Policy Act

QUESTION

Whether the internal management structure at a district public defender's office would remove the district public defender's brother-in-law from the "direct line of supervision" such that his employment at the public defender's office would not violate the Tennessee State Employees Uniform Nepotism Policy Act of 1980, codified at Tenn. Code Ann. §§ 8-31-101 to -107 (hereinafter "the Nepotism Act").

OPINION

No. In the fact situation presented, the Nepotism Act precludes a district public defender from employing his or her brother-in-law as an investigator for the district public defender's office.

ANALYSIS

This opinion request addresses the application of Tennessee's Nepotism Act, codified at Tenn. Code Ann. §§ 8-31-101 to -107, to public defender's offices created under Tenn. Code Ann. §§ 8-14-201 to -212. These public defender's offices are governmental entities as defined by Tenn. Code Ann. § 8-31-102(1), and their employees are state employees under Tenn. Code Ann. § 8-31-102(3). As state employees these employees are covered by Tennessee's Nepotism Act, which states in pertinent part:

[W]ithin each governmental entity, no state employees who are relatives shall be placed within the same direct line of supervision whereby one (1) relative is responsible for supervising the job performance or work activities of another relative; provided, that to the extent possible, the provisions of this chapter shall not be construed to prohibit two (2) or more such relatives from working within the same governmental entity.

Tenn. Code Ann. § 8-31-103.

Each public defender appointed under Tenn. Code Ann. § 8-14-202 is accountable for the office in his or her district and is charged with the responsibility of representing indigent persons for whom the public defender has been appointed as counsel by the court. Tenn. Code Ann. §§ 8-14-202, 8-14-203 and 8-14-204. Each public defender is given full authority to appoint assistant district public defenders and district investigators who "serve at the pleasure of the district public defender and shall perform such duties as the district public defender may require." Tenn. Code Ann. § 8-14-202(b)(2) & (3).

Nepotism statutes or policies are generally designed to avoid conflicts of interest between work-related and family-related obligations and to reduce favoritism or even the appearance of favoritism. See Wright v. Metro Health Medical Center, 58 F.3d 1130, 1136-37 (6th Cir. 1995), cert. denied, 516 U.S. 1158 (1996). The legislative history of Tennessee's Nepotism Act, adopted in 1980, reveals the Act is intended to serve this same purpose. In discussion on the floor of the Tennessee Senate, the Senate sponsor of the bill creating the Nepotism Act responded as follows to a question about a husband and wife working together in a State office:

Senator Hicks: I still say that if they are [working together] it is the wrong thing to do if they're in the direct line of supervision. Now, if they are in the same department, that doesn't make any difference. But if one of them is the other's boss then I think it's a bad situation.

Discussion of Senate Bill 2217 on Senate Floor, 91st Tenn. Gen. Assembly, 2nd Sess., Tape #S-86 (March 24, 1980) (emphasis added).

The specific question posed is whether Tennessee's Nepotism Act would apply in the following factual situation. A district public defender employs his brother-in-law as an investigator with his office. The definition of relative under the Nepotism Act includes the public defender's brother-in-law. Tenn. Code Ann. § 8-31-102(2). The brother-in-law is assigned to the DUI Vertical Team and obtains work/cases through an internal investigative request process embedded in the office case management system. In other words, the office's attorneys request investigative assistance and an investigator is assigned based on the attorney's Team assignment. The brother-in-law only works on DUI cases, and only DUI cases handled by three lawyers on the DUI Vertical Team. His immediate supervisor is the attorney DUI Vertical Team Leader. That attorney team leader supervises and evaluates the brother-in-law's work and is the person responsible for conducting his annual performance reviews. The Vertical DUI Team Leader's immediate supervisor is the deputy public defender. The deputy public defender supervises each of the seven team leaders in the office. The district public defender has no direct supervisory control over the brother-in-law or any of the other investigators in the office. The district public defender does not evaluate the brother-in-law's job performance nor review his annual performance evaluation. These responsibilities are performed by the DUI Vertical Team Leader. The DUI Vertical Team Leader's performance evaluations, and all team leader evaluations, are the responsibility of the deputy public defender.

This Office has previously addressed the application of the Nepotism Act in factually distinct employment scenarios. Op. Tenn. Att'y Gen. 06-101 (June 14, 2006) reviewed whether the Nepotism Act was applicable where a husband and wife were both employed in the same office of the Tennessee Board of Probation and Parole. The husband was the district director while the wife was a probation parole officer who reported to a probation parole manager who, in turn, was then supervised by the husband, the district director. Id. The probation parole manager signed off on the wife's performance evaluations which then normally would have gone to the district director, the husband, for review. However, in an effort to comply with the statute, the assistant director for field services signed the wife's performance evaluations as reviewer, rather than the husband, who was neither a rater nor reviewer in any phase of the wife's performance evaluations. Id. This Office concluded there was a violation of the Nepotism Act because the supervisory connection between the spouses was direct. Despite delegating his supervisory duties over the wife's position, the husband, as director of the regional office, remained responsible for supervising his wife's job performance. Id. at 2.

Op. Tenn. Att'y Gen. 04-113 (July 12, 2004) addressed related state park employees employed at a park inn and restaurant. A hospitality manager 3, which is the top-level manager at the park inn and restaurant, had been reassigned from one park to another. The hospitality manager 3 had a sister-in-law who was employed as a servitor at his new assignment. The hospitality manager was not the direct supervisor of his sister-in-law or any of the servitors. The servitors were supervised by a hospitality assistant who in turn was supervised by a hospitality manager 2. The hospitality manager 3 neither evaluated nor reviewed the evaluations of the servitors. Id. This Office opined in this particular scenario there no violation of the Nepotism Act would exist if "the hospitality manager 3 directs the activities of all the Inn and Restaurant employees and those directions are not applicable individually and solely to his sister-in-law." Id. at 3.

However, this same opinion also examined the hypothetical scenario in which the hospitality manager 3 supervised the person responsible for doing evaluations of the related servitor. In that hypothetical situation this Office determined there would be a violation of the statute because the hospitality manager 3 would be in the direct line of supervising the job performance of his sister-in-law and thus "would be the reviewer of the servitor's evaluations." Id. at 3. Indeed, Op. Tenn. Att'y Gen. 06-101 subsequently summarized this conclusion by succinctly stating "that if one relative supervised the person responsible for doing evaluations of the other relative, the Act would be violated." Op. Tenn. Att'y Gen. 06-101, at 2.

By statute, the district public defender in the factual scenario presented is granted the authority, at his or her pleasure, to hire and fire all district investigators – which would include the brother-in-law employed as an investigator. Tenn. Code Ann. § 8-14-202(b)(3). The district public defender also is granted the authority to hire and fire, again at his or her pleasure, the assistant public defender who supervises the brother-in-law of the district public defender. Tenn. Code Ann. § 8-14-202(b)(2). Thus by statute the investigator in this scenario stands in the "direct line of supervision" of the district public defender, and thereby the hiring and retention of the brother-in-law as an investigator violates the Nepotism Act. The district public defender cannot avoid this conflict by shifting supervision of the investigator to an assistant public defender. The conflict would still exist because the investigator remains in the "direct line of supervision" of the district public defender, since the district public defender supervises the assistant public defender. See Op. Tenn. Att'y Gen. 06-101, at 2; Op. Tenn. Att'y Gen. 04-113, at 3. As Senator Hicks aptly explained in discussing the reach of this Act on the floor of the Tennessee Senate, it is "wrong" for relatives to work together if they are "in the direct line of supervision" and "if one of them is the other's boss" that is "a bad situation." Discussion of Senate Bill 2217 on Senate Floor, 91st Tenn. Gen. Assembly, 2nd Sess., Tape #S-86 (March 24, 1980).

In this scenario the district public defender is ultimately responsible for and in control of his or her office, and the employees in that office cannot be the district public defender's relatives as defined by the Nepotism Act. To construe this statute otherwise would unduly restrict the scope of the Nepotism Act and inappropriately circumvent the legislative purpose of preventing favoritism or the appearance of favoritism in State offices.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JOHN W. DALTON
Senior Counsel

Requested by:
The Honorable Mark Stephens
District Public Defender
1101 Liberty Street
Knoxville, TN 37919