KBS Reference Desk: Nepotism & Substitutes

Q:      We have had a substitute on our sub list for over a year. She has worked on and off, without any permanent assignment, at various campuses in our District. She recently finished an Alternative Certification Program and received her teaching certificate. We would like to hire her as a teacher, but her father is a member of our Board of Trustees. Can we hire her as a full-time classroom teacher?

A:      No, the Attorney General has stated that the substitute exception and the continuous employment exceptions to the general prohibition against nepotism do not apply to the promotion of an uncertified substitute to a full-time certified teaching position. Thus, the substitute’s employment as a classroom teacher is barred by nepotism laws.

Texas Government Code §573.041 and board policy DBE (LEGAL) outline the general prohibition against nepotism in public employment. That is, a public official may not appoint a person to a position that is compensated by public funds if the person is related to the public official by a prohibited degree. Most board policies include a consanguinity (relation by blood) and affinity (relation by marriage) chart at policy DBE (EXHIBIT) which can be helpful to determine prohibited degrees of relation. Clearly, a father and daughter are within the prohibited degree. Thus, unless an exception applies, the daughter’s employment will be barred by the nepotism laws.

The most common exception pertains to substitute teachers. A school district is exempt, by law, from having to comply with the nepotism statutes when it comes to the general employment of substitutes. Thus, the daughter’s previous employment was not in violation of the anti-nepotism policies. However, some districts have attempted to rely on this exception when promoting substitute teachers to full-time teacher positions. The Attorney General has held that this is prohibited under the Government Code since the exception clearly applies only to substitute teachers. Tex. Att’y Gen. Op. JM-0185. Once the substitute moves from her sub position to the certified teacher position, the exception goes away.

Similarly, school districts have attempted to rely on the “continuous employment” exception when promoting substitutes to full-time teacher positions. The “continuous employment” exception is found in Texas Government Code §573.062(a) and board policy DBE (LEGAL). It provides that if an employee has been “continuously employed” for six (6) months prior to their relative’s election to the board (or employed at least 30 days prior to a board member’s appointment), the anti-nepotism laws do not apply. For example, if a certified teacher has been employed with a district for three years and then her husband gets elected to the board of trustees, nepotism laws will not bar his election or her continued employment. However, this exception does not apply to candidates who have been previously employed as substitutes. The Attorney General has stated that a teacher’s service as a substitute teacher does not satisfy the “continuous employment” exception because having one’s name put on a “sub list” creates “neither a guarantee of being contacted by the school district … nor an obligation to accept a teaching assignment if offered one.” Tex. Att’y Gen. Op. JM-861 (1988). Thus, the continuous employment exception does not apply to our scenario and the daughter’s employment with the district as a teacher will be barred by nepotism laws. In the alternative, her father may resign his position on the board; however, as required by the holdover doctrine, a successor must be appointed and sworn in before the daughter can be hired.

 

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