Can a Texas city manager hire a city commissioner's relative without breaking nepotism law?

TX AG Opinion GA-0595: Does nepotism law bar a city manager from hiring a commissioner's relative?

Plain-English summary

A state senator brought the Attorney General a tangle of nepotism questions out of the City of Pharr. As the city's mayor relayed it, a member of the city's board of commissioners had recommended that a particular woman be hired for a city job. At the time she was not married to the commissioner's son, but before being hired she had a child with him. A city department head and the city manager then hired her as a clerk, and after she started work, she and the commissioner's son married. The senator asked four questions: whether the birth of the child created a relationship by marriage (affinity) between the commissioner and the woman, whether the city's hiring decision violated the nepotism law, whether the later marriage barred her continued employment, and whether the continuous-employment exception applied.

The Attorney General did not have to answer all four, because one question disposed of the matter: even assuming a relationship by affinity existed, did chapter 573 of the Government Code apply to this hiring at all? Chapter 573 bars a public official from appointing, confirming, or voting to appoint a person related to the official within the third degree by blood (consanguinity) or the second degree by marriage (affinity), to a position paid from public funds. But the statute attaches to the officer who actually holds the appointing power. Under the 1981 Pena decision, the nepotism law applies to the officer with the exclusive, sole legal authority to appoint, and an officer who has that authority cannot dodge the law by delegating the hiring to someone who lacks it. Building on Pena, the office had previously concluded that when a home-rule city charter delegates full and final appointing authority to the city manager and reserves no authority to the governing body, section 573.041 does not apply to board members' relatives the manager hires.

Pharr is a home-rule municipality. According to the senator's letter, its charter makes the city manager the chief administrative and executive officer and gives the manager exclusive power to appoint city employees below the department-head level, without the approval or involvement of the board of commissioners; the board does not appoint, confirm, or vote on any employees other than department heads. The woman was hired as a clerk, not a department head, so under the charter as described the manager appointed her on his own authority. The Attorney General noted that whether a charter truly delegates full and final authority is normally a question for local officials, and that the office does not ordinarily construe city charters, so the opinion rested on the senator's characterization. On that basis, chapter 573 did not apply to the city manager's hiring of an individual related to a city commissioner (and assumed not related to the manager) for a position below the department-head level. That conclusion resolved the situation, so the opinion did not reach the remaining questions.

Currency note

This opinion was issued in 2008. 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.

Government Code chapter 573, the Pharr City Charter, and the case law on delegated appointing authority cited here may have changed since 2008. Confirm the current statutes and charter before relying on this analysis.

Who this opinion affected (as of 2008)

Home-rule cities and their managers: The opinion told them that where a charter gives the city manager full and final authority to appoint below-department-head employees and reserves none to the governing board, the nepotism statute does not bar the manager from hiring a board member's relative (so long as the relative is not related to the manager).

City commissioners and council members: The opinion explained that a board member's recommendation does not itself trigger the nepotism bar when the board holds no appointing authority over the position; the law follows the officer who actually appoints.

Job applicants related to local officials: The opinion indicated that the key fact is who legally makes the appointment, not who suggested the candidate, when assessing a nepotism problem.

Common questions

Did the commissioner's recommendation make the hire illegal nepotism?
No. The opinion concluded chapter 573 follows the officer with appointing authority. Because Pharr's charter gives the city manager sole power to hire below department-head level and reserves none to the board, the statute did not apply to the manager's hiring of the commissioner's relative.

Does it matter that the couple married after she was hired?
The opinion did not reach that question. Once it determined chapter 573 did not apply to this hiring at all, the affinity, marriage, and continuous-employment questions became unnecessary to answer.

Could the board have avoided the nepotism law just by delegating the decision?
Not if the board itself held the appointing authority. Under Pena, an officer with statutory appointing power cannot escape the nepotism law by delegating to someone who lacks it. Here the manager, not the board, held that power under the charter.

Background and statutory framework

Chapter 573 of the Government Code prohibits nepotism by public officials, including municipal officers (Tex. Gov't Code Ann. §§ 573.001(3), 573.041). Under section 573.041, a public official may not appoint, confirm, or vote to appoint or confirm an individual to a position compensated from public funds if the individual is related to the official within the third degree by consanguinity or the second degree by affinity (id. § 573.041(1); see § 573.002 (degrees of relationship)). Consanguinity is a blood relationship, including adoption, measured by generations (id. §§ 573.022, 573.023(a)); affinity is a relationship by marriage, generally measured by the underlying blood relationship (id. §§ 573.024(a), 573.025(a)).

The nepotism statute applies to the officer holding the exclusive, sole legal authority to appoint, and that officer cannot avoid it by delegating to one without such authority (Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658, 659-60 (Tex. Civ. App.-Eastland 1981, no writ)). Applying Pena, the office had concluded that a home-rule city's board avoids section 573.041 as to board members' relatives when its charter delegates full and final appointing authority to the city manager and reserves no authority to the governing body. Pharr's charter, as described in the request, makes the city manager the chief administrative and executive officer with exclusive power to appoint below-department-head employees without board involvement. Because the office does not ordinarily construe city charters, the opinion was premised on that characterization, and assumed the relative was not related to the city manager within the prohibited degrees.

Citations

Statutes:

• Tex. Gov't Code Ann. §§ 573.001(3); 573.041; 573.002; 573.022; 573.023(a); 573.024(a); 573.025(a) (Vernon 2004)

Cases:

• Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658, 659-60 (Tex. Civ. App.-Eastland 1981, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0595
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0595.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January 17, 2008

The Honorable Eddie Lucio, Jr.
Chair, Committee on International Relations and Trade
Texas State Senate
Post Office Box 12068
Austin, Texas 78711

Opinion No. GA-0595

Re: Applicability of the nepotism statutes, Government Code chapter 573, to an individual employed by the City of Pharr (RQ-0608-GA)

Dear Senator Lucio:

You ask several questions about applying the nepotism statutes, Government Code chapter 573, to the City of Pharr's employment of a particular individual.[1] Your questions arise from the following fact situation, as relayed to you by the city's mayor:

[A] member of the city's governing board of commissioners recommended to the city manager that a particular woman be hired for a city job. The woman was not at that time married to the commissioner's son, but before being hired by the city gave birth to the child of the commissioner's son. A city department head and the city manager subsequently hired the woman as a clerk and, after the employment began, the woman and the commissioner's son married.

Request Letter, supra note 1, at 1; see also Ryan Holeywell, Questions of nepotism raised in Pharr, THE MONITOR (Aug. 16, 2007), available at http://www.themonitor.com (last visited Jan. 8, 2008).

You specifically ask:

(1) Did the birth of a child whose father is the son of a city commissioner create a relationship by affinity between the commissioner and the child's mother such that employment of the mother by the city violates Chapter 573, Government Code?

(2) If a relationship subject to Chapter 573, Government Code, existed between the commissioner and the woman, did the city's initial decision to employ the woman, which was not made by the board of commissioners, violate Chapter 573?

(3) Does the subsequent marriage of the woman to the commissioner's son prohibit the continued employment of the woman by the city?

(4) Does the continuous employment exception to the nepotism laws apply if a relationship by affinity is created after a public official takes office?

Request Letter, supra note 1, at 2-3.

Chapter 573 of the Government Code generally prohibits nepotism by public officials, including municipal officers. See TEX. GOV'T CODE ANN. §§ 573.001(3), .041 (Vernon 2004). Under section 573.041, a "public official may not appoint, confirm the appointment of, or vote" to appoint or confirm the appointment of an individual to a position that is "compensated from public funds" if "the individual is related to the public official within" the third degree by consanguinity or within the second degree by affinity. Id. § 573.041(1); see id. § 573.002 (setting out the degrees of relationship to which chapter 573 applies). Consanguinity refers to relationships by blood, including adoption, and is calculated by counting the number of generations that separate two individuals. See id. §§ 573.022, .023(a). Affinity refers to relationships by marriage and is generally calculated by determining the degree of the underlying consanguine relationship. See id. §§ 573.024(a), .025(a).

All of the issues you raise can be resolved by answering your second question: Even assuming that a relationship by affinity existed between the commissioner and the woman appointed by the city manager, does chapter 573 apply to her employment and retention by the City of Pharr? See Request Letter, supra note 1, at 2.

Under a 1981 decision of the court of civil appeals, Pena v. Rio Grande City Consolidated Independent School District, the nepotism statute applies to officers who have the "exclusive right and sole legal authority to appoint or employ" personnel under the statute. Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658, 659-60 (Tex. Civ. App.-Eastland 1981, no writ). An officer with statutory authority to appoint or employ personnel does not avoid the application of the nepotism statute by delegating authority to an officer without such statutory authority. See id. at 660.

Citing Pena and attorney general opinions premised upon Pena, this office stated in 2004 that a home-rule municipality's governing board avoided the application of section 573.041 to board members' relatives if the board had, by charter, delegated "full and final appointing authority" and had not "reserve[d] any authority to the governing body." Tex. Att'y Gen. Op. No. GA-0226 (2004) at 3. Thus, for example, the nepotism statutes did not apply to a city manager's hiring of individuals related to city commissioners where the home-rule municipality's charter delegated to the city manager sole power to appoint and remove all officers and employees in the administrative service of the city (with the exception of the city attorney) and expressly prohibited the city commission from taking any part in the appointments. See id.; see also Tex. Att'y Gen. Op. No. O-5274 (1943) at 1-3, 10.

The City of Pharr is a home-rule municipality. See TEXAS ALMANAC (2006-2007) at 453, 461; TEXAS MUNICIPAL LEAGUE, TEXAS CITY OFFICIALS DIRECTORY AND BUYER'S GUIDE (2005-2006) at 100. According to your letter, the city charter deems the city manager to be the city's "chief administrative and executive officer" and provides the city manager with exclusive power to appoint city employees below the department-head level:

[The city manager] shall appoint, subject to consultation with the Board of Commissioners, all department heads, and without such consultation all City employees and appointive administrative officers provided for by or under this Charter, except as otherwise provided by law, this Charter or personnel rules adopted pursuant to this charter ....[2]

Request Letter, supra note 1, at 1 (quoting Pharr City Charter art. IV, § 1(a), (b)(2)) (footnote added). As you describe it, "the Pharr city charter grants the city manager the authority to hire city employees below the level of department head without the approval or involvement of the board of commissioners." Request Letter, supra note 1, at 3. You further explain that, under the City of Pharr's charter, the board of commissioners does not appoint, confirm, or vote to appoint or confirm any employees other than department heads. See id. Because this office ordinarily does not construe city charters, this opinion is premised on your characterization of it. See Tex. Att'y Gen. Op. No. GA-0529 (2007) at 1.

The city manager hired the woman about whom you ask to fill a clerk's position, and your letter indicates that the clerk's position is not a department head's position. See Request Letter, supra note 1, at 1, 3. Consequently, the city charter, as you describe it, required the city manager to appoint the clerk without the board of commissioners' approval or involvement.[3] See id. at 3.

Whether in fact the city charter delegates to the city manager "full and final appointing authority" and does not "reserve any authority to the governing body" is generally a question for the appropriate municipal officials to answer. Tex. Att'y Gen. Op. No. GA-0226 (2004) at 3. In these circumstances, however, and assuming that you accurately characterize the City of Pharr's charter, chapter 573 does not apply to the city manager's hiring of an individual who is related to a city commissioner to a position below the department-head level.[4]

Because this conclusion resolves the situation, we need not answer your remaining questions.

SUMMARY

The charter of the City of Pharr, a home-rule municipality, delegates to the city manager the power to appoint individuals to positions below the department-head level without consulting the municipal governing board. If the charter provides the city manager with full and final appointing authority to appoint individuals to such positions and reserves no authority for the city's governing body in these appointments, the city manager may appoint an individual who is related to a city commissioner, but who is not related to the city manager, without contravening the nepotism statutes, Government Code chapter 573.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Eddie Lucio, Jr., Chair, Committee on International Relations and Trade, Texas State Senate, to Honorable Greg Abbott, Attorney General of Texas (July 18, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] We assume that no other provision of the city charter or any city personnel rules abrogate the city manager's appointing authority under article IV, section 1(b)(2) of the Pharr City Charter.

[3] Your letter suggests that "[a] city department head and the city manager" hired the woman. Request Letter, supra note 1, at 1. The department head's role in the hiring is irrelevant to the nepotism analysis, assuming that the department head exercises no delegated authority in the hiring process under the city charter.

[4] We assume for purposes of this opinion that the commissioner's daughter-in-law is not related to the city manager within the third degree by consanguinity or within the second degree by affinity. See TEX. GOV'T CODE ANN. § 573.002 (Vernon 2004).