Can a retired teacher return to a full-time job at the same school district when a relative sits on the school board?

Plain-English summary

A state representative asked whether a teacher who retired from the Pharr-San Juan-Alamo school district, to take advantage of a Teachers' Retirement System incentive, could later return to a full-time certified teaching position when her brother-in-law sits on the school board. The Attorney General concluded that she could not, because retirement breaks the employment relationship as a matter of law and so disqualifies her from the continuous-employment exception to the anti-nepotism statute.

The starting point is the anti-nepotism rule in Government Code section 573.041. A public official generally may not appoint, or vote to appoint, someone paid with public funds if that person is related to a member of the governing board within the third degree by blood or the second degree by marriage. The sibling of a person's spouse, a brother-in-law, is a second-degree relative by affinity, so the rule applied to the retired teacher.

Two exceptions can let a school board hire a close relative of a board member. The first covers substitute teachers, and the district had in fact placed the teacher in a substitute slot under that exception. But because the question asked only about a full-time certified job, the opinion did not analyze the substitute-teacher exception. The second is the continuous-employment exception in section 573.062, which protects an employee who was continuously employed in the position for at least six months before the related official took office. The opinion explained that "continuous" means uninterrupted and unbroken, and that whether a teacher has an ongoing, uninterrupted relationship with a district is usually a fact question. Here, though, the dispositive point was a matter of law: retirement itself terminates the employment relationship.

Drawing on the Teacher Retirement System statutes, the opinion noted that retirement is a "withdrawal from service," that a member's retirement is not effective until employment ends, that returning to public-school employment within two months revokes the retirement, and that having a contract for future public-school employment defeats an attempted retirement. Taken together, these provisions confirmed that retiring severs the employment relationship. With that relationship broken, the teacher could not satisfy the continuous-employment exception and could not be restored to her former full-time position consistent with the anti-nepotism law.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General 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. The anti-nepotism provisions in Government Code chapter 573 and the Teacher Retirement System provisions in chapter 824 have been amended since 2001, so the specific section numbers and waiting periods described here may no longer match current law.

What the opinion meant for those who asked

The requesting representative (what the opinion held): The opinion answered the question put to it: a teacher who retired from a full-time certified position broke her employment with the district and did not qualify for the continuous-employment exception to the anti-nepotism statute, so she could not be appointed to a full-time teaching job where a board member was a prohibited-degree relative.

School boards and district administrators (what the opinion held for them): The opinion treated retirement as ending the employment relationship as a matter of law, which means a retiree returning to a full-time position is treated as a new appointment subject to section 573.041, not as a continuing employee protected by section 573.062. It separately recognized that the substitute-teacher exception in section 573.061(6) could cover a substitute placement, but it did not decide that point.

Teachers related to a board member (what the opinion held for them): The opinion concluded that taking retirement, including under a Teachers' Retirement System incentive, broke the continuous-employment status that the exception requires. It also noted that returning to public-school employment within two months of the retirement date revokes the retirement under the TRS statutes.

Common questions

Does Texas anti-nepotism law stop a school from hiring a board member's relative?
The opinion explained that section 573.041 generally bars appointing someone paid with public funds who is related to a board member within the third degree by blood or second degree by marriage. A brother-in-law (a spouse's sibling) falls within the second degree by affinity.

What is the continuous-employment exception?
The opinion described section 573.062 as protecting an employee who was continuously employed in the position for six months before the related official was elected. Such an employee can keep the job and even receive a promotion or raise, as long as the related official does not take part in the decision.

Why didn't retirement count as continuous employment?
The opinion concluded that retirement breaks the employment relationship as a matter of law. Drawing on the Teacher Retirement System statutes, it noted that retirement is a withdrawal from service, is not effective until employment ends, and is revoked if the member returns to public-school work within two months. So a retiree is not "continuously employed."

What about the substitute-teaching job she was given?
The opinion noted that section 573.061(6) separately excepts the employment of a substitute teacher, and that the district had placed her in a substitute position. Because the question asked only about a full-time certified position, the opinion did not address the substitute-teacher exception.

Background and statutory framework

A public official generally may not appoint or vote to appoint an individual to a publicly funded position if the official or another member of the governing board is related to the individual within the third degree by consanguinity or within the second degree by affinity. Tex. Gov't Code Ann. § 573.041 (Vernon 1994); see id. § 573.002 (degrees of relationship). The sibling of an individual's spouse is related within the second degree by affinity. Id. §§ 573.024, .025 (Vernon 1994 & Supp. 2001).

Two exceptions can permit such a hire. Section 573.061(6) excepts the appointment or employment of a substitute teacher by a school district. Id. § 573.061(6) (Vernon Supp. 2001). Section 573.062 excepts an employee who has been continuously employed in the position for six months before the related official was elected; that employee may keep the position and be promoted or given a raise so long as the related official does not participate in the decision, unless it concerns a bona fide class of employees. Id. § 573.062(a)(1), (2)(B), (b) (Vernon 1994). "Continuous" employment means uninterrupted and unbroken, construed by common usage. Id. § 311.011(a) (Vernon 1998).

The Teacher Retirement System statutes framed why retirement breaks that continuity. Retirement is a "withdrawal from service with a retirement benefit." Id. § 821.001(13) (Vernon Supp. 2001). A member's retirement is not effective until employment ends, id. § 824.002(a)(3); returning to public-school employment within two months of the effective retirement date revokes the retirement, id. § 824.005(b); and a contract for future public-school employment defeats an attempted retirement, id. § 824.002(c). The opinion was given no information that these requirements had been waived in the case presented.

Citations

Statutory provisions:

• Tex. Gov't Code Ann. § 573.041 (Vernon 1994)
• Tex. Gov't Code Ann. § 573.002 (Vernon 1994)
• Tex. Gov't Code Ann. § 573.061(6) (Vernon Supp. 2001)
• Tex. Gov't Code Ann. §§ 573.024, .025 (Vernon 1994 & Supp. 2001)
• Tex. Gov't Code Ann. § 573.062(a)(1), (2)(B), (b) (Vernon 1994)
• Tex. Gov't Code Ann. § 311.011(a) (Vernon 1998)
• Tex. Gov't Code Ann. § 821.001(13) (Vernon Supp. 2001)
• Tex. Gov't Code Ann. § 824.002(a)(3) (Vernon Supp. 2001)
• Tex. Gov't Code Ann. § 824.005(b) (Vernon Supp. 2001)
• Tex. Gov't Code Ann. § 824.002(c) (Vernon Supp. 2001)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0442
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0442.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

December 17, 2001

The Honorable Jim Solis
Chair, Committee on Economic Development
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JC-0442

Re: Whether a teacher who retires from employment with a school district and later wishes to return to full-time employment as a certified teacher with the school district, qualifies for the continuous-employment exception to the statutory prohibition on nepotistic hiring by a school district, see Tex. Gov't Code Ann. §§ 573.041, .062 (Vernon 1994) (RQ-0413-JC)

Dear Representative Solis:

A public official generally may not appoint or vote to appoint an individual to a position that is to be paid with public funds if the official or another member of the governmental entity's governing board is related to the individual within the third degree by consanguinity or within the second degree by affinity, with some exceptions. See Tex. Gov't Code Ann. § 573.041 (Vernon 1994); see also id. § 573.002 ("Degrees of Relationship"). This prohibition does not apply, however, to the "appointment or employment of a substitute teacher by a school district." Id. § 573.061(6) (Vernon Supp. 2001). In addition, the prohibition may not apply to an individual who is "employed in the position immediately before the election or appointment of the public official to whom the individual is related in a prohibited degree" and who has been so employed for a certain period of time. See id. § 573.062 (Vernon 1994). You indicate that a teacher who retired from the Pharr-San Juan-Alamo School District to take advantage of a Teachers' Retirement System incentive program would like to return to a full-time teaching position.[1] But because she is related to a member of the school board, the school district has refused to let her return to the position; rather, she is substitute teaching in the same position. See Request Letter, supra note 1. You ask whether the prohibition on nepotistic hiring bars her from being appointed to a full-time teaching position. See id. We conclude that it does.

Under the anti-nepotism statutes, a school board generally may not appoint an individual to a position that is compensated from public funds if the individual is related to a board member within the third degree by consanguinity or within the second degree by affinity. See Tex. Gov't Code Ann. §§ 573.002, .041 (Vernon 1994). You have asked us about an individual whose brother-in-law, whom we understand to be her husband's brother, sits on the school board. The sibling of an individual's spouse is related to the individual within the second degree by affinity. See id. §§ 573.024, .025 (Vernon 1994 & Supp. 2001).

Two exceptions to this general statutory prohibition allow a school board to hire the close relative of a member of the governing body in certain circumstances. First, section 573.061 excepts the appointment or employment of a substitute teacher by a school district. See id. § 573.061(6) (Vernon Supp. 2001). We understand that the school district has provided the individual in question here with a substitute position under this exception, but she wishes to be a permanent, full-time, certified teacher, see Tex. Att'y Gen. Op. No. JC-0185 (2000) at 2 (distinguishing between permanent substitute, certified teacher employed by contract, and substitute teacher). Because you inquire only about the retiree's eligibility for a full-time certified teaching position, we do not address the application of the substitute-teacher exception.

Second, section 573.062 excepts the appointment or employment of an employee who has been continuously employed in a particular position for six months before the public official to whom the individual is related was elected. See Tex. Gov't Code Ann. § 573.062(a)(1), (2)(B) (Vernon 1994). An individual who has been continuously employed in that position for the requisite duration may not only retain his or her position but may be the subject of an action affecting the employment, such as a promotion or raise, if "the public official to whom the individual is related in a prohibited degree" does not participate in any discussion or vote regarding the individual's status, unless the decision concerns "a bona fide class or category of employees." Id. § 573.062(b). "Continuous" employment denotes employment "[u]ninterrupted in time . . . ; connected; unbroken." III Oxford English Dictionary 830 (2d ed. 1989); see Tex. Gov't Code Ann. § 311.011(a) (Vernon 1998) (requiring that statutory words and phrases be construed consistently with common usage). See generally Tex. Att'y Gen. Op. No. JC-0185 (2000) at 3-4 (discussing nature of "continuous employment" with respect to teaching positions). Whether in any particular situation a teacher has an ongoing, uninterrupted employment relationship with a school district is generally a fact question that cannot be resolved in the opinion process. See, e.g., Tex. Att'y Gen. Op. Nos. JC-0032 (1999) at 4 (stating that question of fact is beyond purview of this office); JC-0027 (1999) at 3 (stating the questions of fact cannot be addressed in attorney general opinion); JC-0020 (1999) at 2 (stating that investigation and resolution of fact questions cannot be done in opinion process). The issue here is whether, by her retirement, the teacher broke her employment relationship with the school district as a matter of law, thereby disqualifying her for the continuous-employment exception.

We conclude that the teacher may not be restored to her former position under the continuous-employment exception to the anti-nepotism statute. Retirement broke the teacher's employment relationship with the school district as a matter of law. Retirement typically is a means by which an individual voluntarily terminates "one's own employment . . . , especially upon reaching a certain age." Black's Law Dictionary 1317 (7th ed. 1999); see also XIII Oxford English Dictionary 782 sense 2 (2d ed. 1989) (defining "retire" as "to give up one's business or occupation . . . to enjoy more leisure or freedom (esp. after having . . . earned a pension)"). For purposes of the Teacher Retirement System, "retirement" is a "withdrawal from service with a retirement benefit granted under this subtitle." Tex. Gov't Code Ann. § 821.001(13) (Vernon Supp. 2001). A Teacher Retirement System member's retirement is not effective until the member's employment ends. See id. § 824.002(a)(3). Moreover, if the retired member returns to employment with the public school system within two months of the effective retirement date, the retirement is revoked. See id. § 824.005(b). And, if a member had a contract for future employment in a public school when the member attempted to retire, the member's retirement is not effective. See id. § 824.002(c). See generally Letter from Conni Brennan, General Counsel, Teacher Retirement System of Texas, to Susan D. Gusky, Chair, Opinion Committee, Office of the Attorney General (Oct. 19, 2001) (on file with Opinion Committee). We have been provided no information that these retirement requirements were waived in this particular case.

[1] Letter from Honorable Jim Solis, Chair, Committee on Economic Development, Texas House of Representatives, to Honorable John Cornyn, Texas Attorney General (Aug. 13, 2001) (on file with Opinion Committee) [hereinafter Request Letter].

                                    SUMMARY

            A teacher who has retired from a full-time, certified teacher position has broken his or her employment with the school district and does not qualify for the continuous-employment exception to the statutory prohibition on nepotistic hiring by the school district. See Tex. Gov't Code Ann. §§ 573.041, .062 (Vernon 1994).

                                           JOHN CORNYN
                                           Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee