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.

 

Related Posts

Recent Articles

KBS Reference Desk: On Call Employees Over Holidays
December 17, 2021
KBS Reference Desk: Holiday Decorations
December 10, 2021
KBS Reference Desk: Removal of Library Books
December 3, 2021
KBS Reference Desk: Attendance Waivers
November 19, 2021
KBS Reference Desk: HB 103 Texas Active Shooter Alert
November 12, 2021
KBS Reference Desk: Remote Learning and ADA-Funding
November 5, 2021
KBS Reference Desk: CBD Oil
October 29, 2021
KBS Reference Desk: Temporary Custodians of Record – TPIA
October 22, 2021
KBS Reference Desk: Dyslexia Handbook Update
October 15, 2021
KBS Reference Desk: Peace Officer Legislation
October 8, 2021
KBS Reference Desk: HB 1525 PTO Donations
October 1, 2021
KBS Reference Desk: State Certifications Update – SB 13 & SB 19
September 24, 2021
KBS Reference Desk: Accelerated and Supplemental Instruction HB 4545
September 17, 2021
KBS Reference Desk: Active Threat Excercises
September 10, 2021
KBS Reference Desk: HB 1927 Firearms
September 3, 2021
KBS Reference Desk: Remote Participation in Board Meetings
August 27, 2021
KBS Reference Desk: Waiving Minimum Attendance Requirements for Seriously Ill Students
August 20, 2021
KBS Reference Desk: Inquiring About Vaccine Status
August 13, 2021
KBS Reference Desk: Temporary Suspension of TPIA due to Catastrophe
August 6, 2021
KBS Reference Desk: Standard for Reporting Child Abuse and Neglect
July 30, 2021
KBS Reference Desk: Bullying Policies and Reporting SB 2050
July 23, 2021
KBS Reference Desk: Homeschoolers and UIL
July 16, 2021
KBS Reference Desk: TOMA Suspension Extension
July 9, 2021
KBS Reference Desk: Revision to Resignation without Penalty Deadline
July 2, 2021
KBS Reference Desk: SB 179 School Counselors
June 25, 2021