No. DM-0002 (1991).
Case Date | February 04, 1991 |
Court | Texas |
Texas Attorney General Opinions
1991.
No. DM-0002 (1991).
February 4, 1991Opinion No. DM-002Morales Opinion No. DM-002
Office of the Attorney General State of TexasHonorable Maida ModglingCounty Attorney of
Medina CountyMedina County CourthouseHondo, Texas
78861SYLLABUS:1991-0002Re: Application of nepotism law
when an officer holds over, and construction of prior continuous service
provisions of nepotism law (RQ-2160)Dear Ms. Modgling:
You ask several questions about the Texas nepotism law, article
5996a, V.T.C.S. As background, you inform us that the city council of Devine, a
Type A general-law municipality has, by ordinance, delegated to its city
administrator the authority to hire city employees. See Local Gov't Code
section 22.071 (governing body of general-law municipality may appoint officers
and agents). You explain that when the brother of a member of the city council
applied for employment with the city, the city administrator took the position
that the nepotism law prevented the city from hiring him. As a consequence, the
city council member resigned. The city then hired his brother.
Your first question is whether the nepotism law would in fact
prohibit the city from hiring the brother of a city council member if the city
had delegated all hiring decisions to a city administrator. The nepotism law
prohibits a member of a governing body from voting for the hiring of a person
related to any member of the body within a prohibited degree. (fn1) Delegation
of hiring decisions does not relieve the members of the governing body of the
burdens of the nepotism law. Attorney General Opinion O-4686 (1942). You bring
to our attention, however, Attorney General Opinion O-5274 (1943), which stated
that a city could hire a relative of a member of the city's governing body
because the city's charter prohibited members of the governing body from
participating in hiring decisions. That holding is not inconsistent with
Attorney General Opinion . The applicability of the nepotism law depends on
whether an officer may exercise control over hiring decisions. Pena v. Rio
Grande City Consol. Indep. School Dist., 616 S.W.2d 658 (Tex. Civ. App.
Eastland 1981, no writ); Attorney General Letter Advisory LA-148 (1977). The
governing body of a home-rule city may not, by ordinance, override a provision
of the city charter. Tex. Const. art. Xl, section...
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