KBS Reference Desk: Nepotism and Holdover

Q:    We are struggling to fill one of our teaching vacancies and finally interviewed the perfect candidate. Problem is, she is the daughter of one of our board members! The trustee has decided to resign at the next board meeting. After the board member resigns, can we go ahead and hire the daughter?

A:    No. Under Texas law and board policy, a trustee is considered to “holdover” the position after resignation until a replacement is appointed. Thus, you will need to appoint a new trustee to fill the board vacancy before you can hire the new teacher.

Board Policy DBE (LEGAL) prohibits hiring an individual who is related to a “public official” (e.g., board trustee) by blood within the third degree or by marriage within the second degree. Your DBE (LOCAL) or (EXHIBIT) policies will explain the specific relationships covered by these nepotism provisions. When you have determined that a potential hire is related to a trustee in a prohibited degree, the board member must resign before moving forward with the hire. This is done by a written resignation which is accepted by the board through a vote at a regular or special meeting. After the resignation has been accepted by the board, a replacement may be appointed to fill the now-vacant seat. This must occur before you can hire the resigning board member’s relative pursuant to the “holdover doctrine” outlined in Board Policy DBE (LEGAL). This policy states that all trustees continue to perform the duties of their offices “until their successors shall be duly qualified, i.e., sworn in.” Until the vacancy is filled by a successor, “a relative within a prohibited degree of relationship is barred from employment.” DBE (LEGAL); Tex. Const., Art. XVI, Sec. 17; Atty. Gen. Ops. JM-636 (1987), DM-2 (1991), O-6259 (1945).

In theory, all actions that need to occur before hiring the candidate may be taken at the same meeting. For example: 1) the board member resigns; 2) the board votes to accept the resignation; 3) the board deliberates about and appoints a replacement; 4) the replacement takes their oath and is sworn in (Policy BBB); and 5) the (new) board deliberates about and votes to hire the candidate previously disqualified by the nepotism policy. While these steps may all be taken at the same meeting if the board needs to quickly fill a position, we advise careful consideration of each action, paying particular attention to the order in which they occur. Be sure to follow Board Policy BBC (LEGAL) which outlines the procedural process for board resignations and vacancies.

Note that the above still applies if your board has delegated the authority to hire professional employees to the superintendent, even if just for the summer months. In such a circumstance, the nepotism provisions will apply to both the board members and the superintendent (meaning the superintendent becomes a public official for purposes of nepotism and the District is prohibited from hiring an applicant who is related to any board member or the superintendent by a prohibited degree). Tex. Educ. Code §11.1513. There is an exception to this law for districts located in “small counties.” If your district is located in a county with a population of less than 35,000, and the board has delegated hiring authority to the superintendent, the board members will not be subject to the nepotism provisions of your board policy. The superintendent, however, will be subject to the policies and the District may not hire anyone related to the superintendent within a prohibited degree. 

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