December 5, 2003
Re: Application of Nepotism Policy to Employee Whose Brother is Elected to Council
Dear Madam:
You asked for an opinion on whether your Town’s nepotism policy applies to an
employee whose brother is elected to the City Council. The applicable provision of the Town’s
policy is ambiguous and susceptible to differing interpretations, but when the nepotism provision
is read as a whole, it appears to apply to continuous employment of a family member who is an
employee rather than the initial hiring of the family member. Absent some indication of
legislative intent and purpose otherwise, my opinion is that the provision applies to the
employee-brother of a person elected to the Council.
This is the pertinent language from the Town’s ordinance:
No immediate family members of elected municipal officials shall be employed by the
Town.
This short sentence violates several rules of statutory drafting (taken literally, for example, the
prohibition applies only to multiple family members and multiple officials, so that it would not
apply to a single family member of a single official), but the real ambiguity is caused by the use
of the future tense phrase “shall be employed.” The word “shall” is so often incorrectly used in
the law to indicate present infractions that its intended use actually to indicate future tense creates
ambiguity. For example, the words “it shall be unlawful” to do such and such do not mean that it
will be unlawful at some time in the future (when?) to do the prohibited act. If these words were
taken with their literal meaning, they would not apply to any situation because the future never
gets here. They must be interpreted to mean that it is unlawful now to do it because the
legislature would not pass a law that is a nullity. The court would have to say that the future tense
was used to refer to the period of time after the law took effect and that at the time the legislature
was considering the law, that was in the future. So we do not know for sure whether the use of
the future tense in this sentence is a true use or a false legalistic use of it. This is why most
careful drafters (and there are few of these indeed) avoid the use of “shall” to indicate tense
(confining its use to directing action) and write statutes and ordinances in the present tense.
The word “employed” creates even more ambiguity and the interpretation given to this
word is the real crux of the matter. It can mean either initially hired or continuously working for
an employer, in this case the Town. So almost every word of the sentence contributes its own
ambiguous meaning to the ambiguity of the whole.
There are two (2) things the above ordinance provision can mean that perhaps are clearer
stated as follows:
1.
The Town may not hire a member of the immediate family of an elected Town official as
an employee.
or
2.
A member of the immediate family of an elected Town official may not be an employee
of the Town.
Under the first statement, the brother who is already an employee could continue as an employee
because he was hired before the other brother was elected. Under the second statement, the
employee brother would have to resign or the elected brother not take office because an
immediate family member of an elected official cannot be an employee of the Town. Because of
this ambiguity, a court that was asked to apply this language would try to determine what the
intent and purpose of enacting it were. I believe that in interpreting the language of the nepotism
provision as a whole, a court would conclude that the second statement above was what was
intended.
The first place the court would look probably is the ordinance itself to see if there are any
clues in other parts of the ordinance to the meaning of the language in question. Since you sent
only one page of the personnel ordinance, I assume there is no definitions section where the word
“employed” is defined. It happens, however, that the phrase “shall be employed” is also used in
the first sentence of the nepotism section. The pertinent part of this sentence reads:
No member of an immediate family ... shall be employed under the same line of
supervision.
Here the phrase is obviously referring to continuous employment rather than just initial hiring. If
it were otherwise, the apparent purpose of the restriction could be thwarted by the initial hiring of
a person in a different line of supervision and then transferring the person to the line of
supervision under the family member.
Since the phrase “shall be employed” is used in both sentences prohibiting nepotism, and
these sentences are next to each other, I think it is reasonable to assume it means the same in both
sentences. It seems clear that the phrase in the first sentence refers to continuous employment
rather than initial hiring, so I must conclude it refers to continuous employment in the second. It
would have been so easy to use the words “hire” or “initially hire” in the second sentence if that
is what was meant. The intent of the two (2) sentences seems to be that no employee will be
supervised by an immediate family member and that no employee may be an immediate family
member of an elected official.
I have found three (3) cases from other states that interpret nepotism statutes as applied to
existing employees when a relative is elected to the governing body, in each case a school board
because the employees were teachers. In Backman v. Bateman, 263 P.2d 561 (Utah 1953), the
statute clearly applied to employees serving before the relative was elected to the board. The
court ruled the statute unconstitutional as applied to the plaintiffs because they would lose
retirement benefits to which they had contributed for over 27 years. In Hinek v. Bowman Public
School District #1, 232 N.W.2d 72 (N.D. 1975) and New Mexico State Board of Education v.
Board of Education of Alamogordo Public School District No. 1, 624 P.2d 530 (N.M. 1981), the
courts ruled in the circumstances of those cases that the words “shall be employed” or “shall
employ” meant the initial hiring of the teacher. In the Hinek case there was some legislative
history indicating that the statute applied only to the hiring of the employee. The court in the
New Mexico case indicates the interpretation of the phrase “employ” to refer to continuous
employment rather than initial hiring would conflict with tenure statutes and might run afoul of
due process protections. I doubt that the rationales in these cases would prevail here because the
employee in question probably does not have a property right to the job and because of the use of
the phrase “shall be employed” in the first sentence of your nepotism provision to mean
continuous employment rather than initial hiring. I am including copies of the cited cases for
your perusal.
It could be that you could find other indications of what was meant by the phrase “shall
be employed,” but my guess would be that any kind of legislative history would be sparse.
Therefore, we are probably limited to the use of the phrase in the ordinance itself and trying to
interpret it with a consistent meaning.
I hope this is helpful. If you have further questions, please call.
Sincerely,
Dennis Huffer
Legal Consultant