8/28/10

Last week, Texas Attorney General Opinion No. GA-0794 (2010) was issued on "Whether section 11.1513 of the Education Code prohibits a school superintendent to whom final selection of personnel is delegated from employing persons related to trustees of his district."  It is probable that this issue will be revisited by the Texas Legislature in 2011 judging by the ruling by the Texas Attorney General Greg Abbott.  This topic has been the subject of many phone calls between school officials and their attorneys and the Texas Education Agency.   

The Summary to the Opinion stated,

"Pursuant to subsection 11.1513(f) of the Education Code, the Legislature has generally prohibited a school district, either through its board of trustees or its superintendent to whom final selection of personnel is delegated, from employing persons related to members of the school district's board of trustees within the degrees described in chapter 573 of the Government Code.

Pursuant to Education Code subsection 11.1513(g), a superintendent who has been delegated final authority for personnel selection may employ a relative of a member of the school district board of trustees if the superintendent's school district is located: (1) wholly in a county with a population of less than 35,000; or (2) in more than one county, if the county in which the largest portion of the district is located has a population of less than 35,000.

Under chapter 573 of the Government Code, criminal penalties may be imposed on a public official who appoints, confirms the appointment of, or votes for the appointment or confirmation of the appointment of an individual if the public official holds the appointment or confirmation authority as a member of a state or local board, the legislature, or a court and the individual is related to another member of that board, legislature, or court within a degree described by section 573.002. Section 11.1513(f) of the Education Code is not clear as to whether the criminal penalties would apply to a superintendent with final hiring authority or to board members that delegated that final authority. Due to the long-settled rule of law that a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, we refrain from concluding that the superintendent or the board members could be subject to these penalties. If the Legislature intends otherwise, it may expressly amend the statute to so provide."

To read the opinion, click on the link below.

http://www.oag.state.tx.us/opinions/opinions/50abbott/op/2010/htm/ga-0794.htm