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. 

Related Posts

Leave a Reply

Recent Articles

KBS Reference Desk: Evaluating SPED Teachers after COVID-19
April 2, 2021
KBS Reference Desk: Pay During Closure
February 26, 2021
KBS Reference Desk: Virtual Learning and Child Find
February 5, 2021
KBS Reference Desk: American Rescue Plan
January 29, 2021
KBS Reference Desk: TOMA Suspension Extension – Additional 30 days
January 15, 2021
KBS Reference Desk: Updated FFCRA Guidance
January 8, 2021
KBS Reference Desk: New Stay-at-Home Protocols
December 18, 2020
KBS Reference Desk: Vaccine as a Requirement for School Attendance
December 11, 2020
KBS Reference Desk: Campus Closure due to COVID-19 and Funding
December 4, 2020
KBS Reference Desk: Nonexempt Volunteer Work
November 20, 2020
KBS Reference Desk: TPIA – 10-day Extension
November 6, 2020
KBS Reference Desk: Discontinue Virtual Learning
October 30, 2020
KBS Reference Desk: Political Dress
October 23, 2020
KBS Reference Desk: Emergency Safety Drills
October 16, 2020
KBS Reference Desk: Requests for Homebound Instruction During COVID
October 9, 2020
KBS Reference Desk: Mask Exception
October 2, 2020
KBS Reference Desk: UIL Football Streaming
September 26, 2020
KBS Reference Desk: Eligible Expenses Under Coronavirus Relief Fund
September 18, 2020
KBS Reference Desk: Confidentiality and the ADA
September 11, 2020
KBS Reference Desk: Threat Assessment
September 4, 2020
KBS Reference Desk: Emergency Board Meetings
August 28, 2020
KBS Reference Desk: Homebound Services
August 21, 2020
KBS Reference Desk: COVID-19 Student Privacy and Virtual Learning
August 14, 2020
KBS Reference Desk: ADA Accommodations Based on Family Member’s Disability
August 7, 2020
KBS Reference Desk: EPSL EFML
July 31, 2020