The opinion
The Attorney General of Texas
July 25, 1983
JIM MATTOX
Attorney General
Honorable Bob Bush Opinion No. JM-45
S”preme Co”r! Building
P, 0. BOX 12548 Chairman
A”S11”. TX. 78711- 2548 Committee on Judiciary Re: Whether an outside auditor
5,2,475-2501 Texas House of Representatives who contracts to perform for a
Teiex 9101674~1367 P. 0. Box 2910 school district is subject to
Telecopier 5121475-0266
Austin, Texas 78769 article 5996a, V.T.C.S., the
nepotism statute
1607 Main St.. suite 1400
Dallas. TX~ 75201-4709 Dear Representative Bush:
2141742-8944
You have requested a construction of article 5996a. V.T.C.S.,
4824 Alberta Ave.. Suite 160 which deals with "nepotism." The facts are as follows: in April,
E, Paso. TX. 79905.2793 1982, an individual was elected as a trustee of an independent school
9151533.3484 district. This trustee is a first cousin of a certified public
accountant (CPA) who serves as the school district's auditor.
Accordfng to a letter from the superintendent of this school district,
this CPA "was first awarded a contract to perform the School
District's annual audit in 1972 and he has served continuously in this
capacity for the past eleven (11) years." This letter also states
that the trustee has no financial interest in the audit firm in which
806 Broadway. Sutfe 312
the CPA is employed.
Lubbock. TX, 79401-3479
8061747-5238
Article 5996a provides in part:
4309 N. Tenth. swte 8 No officer. . . any. . . school district. . .
McAllen. TX. 78501.1685
shall appoint, or vote for, or confirm the
5121682-4547
appointment to any office, position, clerkship,
employment or duty, of any person related within
200 Main Plaza. suite 400 the second degree by affinity or within the third
San Anlonm TX~ 782052797 degree by c"nsang"inity to the person so
5121225-4191
appointing or so voting, or to any other member of
any such board. . . of which such person so
A” Equal Opporlullltyl appointing or voting may be a member, when the
Afllrmafive AC,,O”Empluyer salary, fees, "t compensation of such appointee is
to be paid for, directly or indirectly, out of or
from public funds or fees of office of any kind or
character whatsoever; provided, that nothing
herein contained. . . shall prevent the
appointment, voting for, or confirmation of any
person who shall have been continuously employed
in any such office, position, clerkship,
p. 196
Honorable Bob Bush - Page 2 (JM-45)
employment or duty for a period of two (2) years
prior to the election or appointment of the
officer or member appointing, voting for, or
confirming the appointment, or to the election or
appointment of the officer or member related to
such employee in the prohibited degree. (Emphasis
added).
You have asked whether, in the situation outlined above, any violation
of article 5996a has occurred. We assume that the CPA in question is
currently serving as the school district’s auditor.
In the aforementioned letter, the superintendent indicated that
one of his concerns is whether, under article 5996a, it makes any
difference that the CPA is an “independent contractor” rather than an
“employee” of the school district. We think not. In our opinion, the
legislature, in enacting this statute, chose the extremely
comprehensive words “office, position, clerkship, employment or duty”
in an effort to cover every conceivable situation in which a
governmental body might hire someone to perform some service for it.
It sought, in other words, to make it clear that nepotism questions
should not turn on technical distinctions between “employee” and
“independent contractor”; instead, the relevant question should be
whether the governmental body employed the individual in question to
perform some service for it. Thus, even assuming arguendo that this
CPA is an independent contractor, this employment situation is covered
by article 5996a, because the CPA (1) is related to a school trustee
within the prohibited degree; (2) was hired, i.e., “appointed” by a
school board containing this trustee to perform a service for the
school district; and (3) occupies a “position” or “employment” or is
performing a “duty” for the district within the meaning of this
statute.
Recause this employment relationship is governed by article
5996a, the CPA may, while his relative is serving on the school board,
continue to be hired by that school board to perform as the school
district’s auditor only if the two-years’ continuous employment
proviso in article 5996a is applicable. He may be reemployed, in
other words, only if he was “continuously employed” by the school
district for two years prior to the date on which his first cousin
officially became a school trustee. -See Attorney General Opinion
M-857 (1971).
In his letter, the superintendent advises that the CPA conducts
the annual audit for the school district. We have been unable to
locate a prior opinion dealing wf,th a situation quite like this one,
in which the question is whether the “continuous employment” proviso
can apply where sn individual is hired to perform a service during one
portion of each year rather than throughout the entire year. We
p. 197
Honorable Bob Bush - Page 3 (JM-45)
conclude, however, that the proviso applies in this instance if,
during the two years immediately preceding the qualification of the
CPA’s first cousin as a trustee, the CPA was continously in the employ
of the school district as its auditor, regardless of whether he was
actually rendering auditing services for the district.
Webster’s New International Dictionary, 2nd Edition, defines
“continuous” as “without break, cessation, or interruption; without
intervening space or time.” In Attorney General Letter Advisory No.
151 (1978)) which concluded that the express refusal by a school
district to rehire a teacher’s aide before her current term of
employment ended constituted a break in her employment for purposes of
the two-year proviso, this office quoted the following statement from
Cox v. Brown, 50 S.W.2d 763, 764 (MO. App. 1932):
Continuously in. . . employ does not mean
continuously in. . . service. To be employed in
anything means not only the act of doing it, but
also to be engaged to do it, or to be under
contract or orders to do it.
These authorities establish that an individual who performs
services on a seasonal or periodic basis may be protected by the
two-years’ continuous service proviso. For the proviso to apply,
however, the individual must have been “employed” by, &, “engaged”
by or operating under a contract with, the governmental entity that
hired him for the entire two years immediately preceding the election
or appointment of his relative (within the prohibited degree) to the
governing board of that entity.
If, during the entire 730 days immediately preceding the
qualification of his first cousin as trustee, this CPA was
continuously under contract with the school district to perform
auditing services for it, we believe that no violation of article
5996a occurred when the school board thereafter continued to reemploy
him as its auditor. The fact that the auditor was hired to perform a
periodic service does not mean that he cannot be deemed to have been
“continuously employed” by the school district as its auditor for that
two-year period. Of course, the question of whether the CPA was
employed by the school district for the required two year period is a
fact question which cannot be resolved in the opinion process.
SUMMARY
No viol~ation of article 5996a. V.T.C.S.,
occurred where a CPA who had served as the school
district’s auditor since 1972 was reemployed in
that capacity after his first cousin was elected
to the school board, if the CPA was “continuously
p. 198
honorable Bob Bush - Page 4 (33-45)
employed" by the school district as its auditor
for two consecutive years prior to the election of
his cousin as trustee.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Acting Chairman
Jon Bible
David Brooks
Colin Carl
Jim Moellinger
Nancy Sutton
Bruce Youngblood
p. 199