Montana Attorney General Opinion 15-319

Opinion No. 319 Nepotism-Schools-Trustees -Teachers. HELD: The failure of the Board of Trnstees to notify a teaeher. who is the wife of a member of the board. tha t her sen'ices are no longer required (accordin~ to Sec. 1075. R: C. M. 1921. flS flmended) constitutes a. yiolation of the Nepotism Act. August 22, 1933. You have inquired (1) whether it is fI violation of the Nepotism Act, Chap- tel' 12, La. ws of 1933, where the trus.- teE's of a school district fail to notify a. teacher before May 1. as provided in ~ection 1075. R. C. M. 1921. ItS amended by Chapter 87, TAlwS of 1927. that her services will no longer be required, \\ith the result that the teacher, who is the wife of one of the members of the board was re-elected and insists upon the right to teflch: and (2) wheth- er the teacher has such right. ['i'ection 10721, R. C. M. 1921, defines fI crime as follows: "A crime or puhlic offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is an- nexed, upon conviction. either of the following punishments: * • *." This definition is similar to the definition set forth in 16 C. J. p. 50, Section 2, and 4 Blackstone Comm. p. 5. See also 16 C. J. p. 83, Section 51. A school district is a political subdi- vision of the state. (State \'. Myers, 65 :\Iont. 124, 210 Pac. 1064). The Nepo- tism Act is a declaration by the legis- OPIKIOXS OF THE ATTORXEY GENERAL 215 lature of the public policy of the state with reference to the appointment of relath'es. The trustees, being public officers, were charged with the duty of obeying the law and of taking such steps as were necessary to carry out the public policy and to prevent the appointment and employment of the wife of the chairman as a teacher of the district. (See opinion No. 284, this volume.) To accomplish that purpose it was their duty to the State of Mon- tuna, and their school district to ]10- tify their teacher, (conceding that the teacher was entitled to such notice in view of the Nepotism Act) that her services were no longer requi)"ed. 'Vhether they met and formally ,'oted not to notify her or refrained from voting or neglected to vote at all, in either event they failed to discharge their duty. Whether it was an act com- mitted o~ an act omitted, is immaterial under our -statute. It is the rule gen- erally tha t an omission may be a crime when the omission is connected with a legal duty to the state, or an individual. (Bish()p New Crim. Law, Vol. 1, Sec- tions 217 (8),314 and 816; Wharton Crim. Law (12th Ed.) Vol. 1, Sec. 198.) The fundamentals of this question are treated by Wharton id., Section 167 : "Omissions are not the basis of pe- nal action, unless they constitute a defect in the discharge of a responsi- bility with which the defendant is especially invested, though in such cases they may constitute indictable offenses. There is no such thing, in fact, as an omission that can be treated as an absolute blank. A man who is apparently inactive is actually doing something, even though that something is the abstinence from some- thing else that he ought to have done. Even sleeping is an efficient act, and' may become the object of penal prose- cution when it operates to interrUl}t an act on the part of the defendant which the law requires of him with the penalty of prosecution for his dis- obedience. As, therefore, an omission takes its character from the prior re- sponsibility that it suspends, that re- sponsibility must be scrutinized when we undertake to estimate the penal character of an omission to perform it. And as a general rule in this re- spect we may say, thut when a re- sponsibility specit1ically imposed on the defendant is such that an omis- sion in its performance is, in the usual course of events, followed by an in- jury to another person or to the state, then the defendant is indictable for such an omission." Also by Bishop id. Section 433 : "Neglect an Act.-There are circum- stunces wherein men are indictable for what the law calls neglect. It is in the legal sense an act,-a departure from the order of things established by law, a checking of action. It is like a man's standing still while the company to which he is attached mOTes along, when we say, he leaves the company." It is therefore my opinion that the trustees violated Chapter 12, Laws of 1933, by reason of their omission to discharge their duty to notify the teach- er that her services were no longer required. Answering your second question, this office has heretofore held that a con- tract entered into in violation of the act, is void. (Opinion No. 179, this volume.)