Montana Attorney General Opinion 15-179

Opinion No. 179 Nepotism-School Dist-licts-Contracts, Legality of-Clerk of District. HELD: Unable to advise that an appointment on ground of merit is a defense to member of board appointing relative. (2) A memher of a sehool board vio- lates Nepotism Law where he acts to appoint as clerk a relative of anothcr member of the board. (3) A contract appointing a relative of a member of school board as clerk is "void. April 25, 1933. You have submitted the following questions: "1. l\lay the chairman of a school board break a tie vote for clerk and legally cast his vote for his rela- tive on the ground, as he specifically stated at the time, that he was mO\-ed solely by a consideration of merits rather than relationship? 2. Where a relative of the chainnan of a school board has been elected clerk, can such relative serve as clerk·!" OPIXIOXS OF THE A'el'OHXEY GEXERAL 129 It has been held by our Supreme Court that a school district is a political subdivision of the state (State v. :\Ieyers, 65 :\Iont. 124) and therefore Chapter 12, Laws of 1938, being the 80- called Xepotism Law, applies to school districts and school boards. This office has rendered an opinion to the effect that it was unable to ad- vise tha t an officer who appoints n rela th'e to a llosition e,'en though the appointment is made hecause of merit rathel' than relationship would not be \"iolating the law. See opinion Xo. 117, this ,'o!., l\Ia reh Hi, 1983. In doing so, \ye took into consideration the faet tha t neither sections 2 nor :3 of the said act, which makes certain aets illegal, make any reference to medt nor do they make an appointment based on merit a defense. In yiew of the word- ing of these two .sections, I am unahle to advise that the chairman did not dolate the law. It is also my opinion tha t the other members of the board violated the law when they elected or appointed someone who is related to a member of the board. Section 2 of this act reads: ,·It shall be unla Wflll for any person or any member of any board, * * * to appoint to any position of trust or emolument any person or persons re- lated to him or them or connected with him 01' them by consanguinity within the fourth degree, or by affinity within the secolI{l degree." Section :3 of the act contains identkal language. Ha dng used this langua~e, I am unable to eseape the conclusion t'illlt it was the iutcution of the legis- lature to make it illegal for any mem- ber of the board to appoint any person related to any member of the board "ithin the degrees mentioned in the act and that they did not intend to make the act operative only when the person appointed is related to each memher of the board. The phrase "him 01' them" is sweeping and was intended to coyer the situation where relation- ship exists with any member of the board e,'en though it docs not exist with each member of the board. In Illy opinion to hold otherwise would he to nullify the plain intention of the legislature to prevent boards from per- sistently showing preference to some favored relative and to put an end to a pemidous praetice of governmental patronage. Your second question requires a de- termination of the question whether the contract with a relath'e is legal. The act itself is silent as to the legality of the contract. In an old English case (Bartlett ". Vi nor, Carth. 252, 00 Re- l}l;nt 71)0) Lord Holt very aptly said: "EYery contract made for or about any matter or thing which is prohibited and made unlawful by any statute, is a void contract, tho' the statute itself doth not mention that it shall be so, hut only inflicts a penalty on the of- fender, because a penalty implies It prohibition, tho' there are no prohi, bitory words in the statute." This sub- ject is also dealt with in 13 e. J. 421, Section 352, where it is stated: "Fre- quently a statute imposes a penalty on the doing of an act without either pro- hibiting it or expressly declaring it illegal or void. In cases of this kind the decisions of the courts are not in harmony. The generally announced rule is that an agreement founded on or for the doing of such penali7..ed act is void." In Dunlop Y. ~Iereer. 156 Fed. 545, 556, 86 eGA '135, 212 U. S. 588 mem., it was said: "The true rule is that the court should carefully consider in each case the terms of the statute whieh prohihits an act under a penalt)', its object, the evil it was cn(lcted to remedy, and the effect of holding eon- tmcts in violation of it void, for the purpose of ascertaimng whether or not the lawmaking power intended to make suell eon tracts void, and, if from all these considerations it is manifest that the legislature had no 15uch intention, the contracts should he sustained and enforced; otherwise, they should be held void." Keeping in mind ~he legislative in- tent and the evil that they intended to remedy, it is my opinion that a con- tract entered into with the clerk, who is a relative of the chairman of the board, is ,·oid.