Q: At a recent meeting, a board member, who is an accountant, expressed the desire to teach an advanced accounting class at the high school. He would perform the work voluntarily, on a part-time basis and would not be paid by the district. The trustee even has teaching experience as an adjunct professor at a local college. Is this allowed?
A: No. A school board member may not be employed by the district, even on a volunteer part-time basis, because of the legal doctrine of incompatibility of the offices.
“Incompatibility” is a legal theory that is implicated when an individual holds two public “offices.” The doctrine of incompatibility prohibits a person from holding two simultaneous positions “where one position might impose its policies on the other or subject it to control in some other way.” Tex. Att’y Gen. Op. JM-129 (1984). There are three types of incompatibility: 1) self-appointment; 2) self-employment; and 3) conflicting loyalties. Tex. Att’y Gen. LO-95-029; Tex. Att’y Gen. LA-114 (1975). The issue here is self-employment. This means that two offices are incompatible where one “employs” the other, with the key being “subordination,” rather than compensation. Compensation for services, however, is not the only component of incompatibility – the Attorney General has stated that the crucial question is whether one position exerts control over the other. Tex. Att’y Gen. Op. JC-0371 (2001). As with a board member and a teacher, the board not only has final hiring and dismissal authority, but also general supervisory power over the instructional and operational functions of the district. Even if your district delegates hiring authority to the superintendent, the board has supervisory authority over the superintendent, in addition to general managerial power over the operation of the district as a whole. Id. Therefore, as a member of the governing body of the district, a trustee cannot simultaneously serve as a subordinate employee of that body – even if teaching part-time and without pay.
In contrast, the Attorney General has stated that trustees may serve in other volunteer capacities within the district. For example, it is acceptable for a board member to volunteer his or her time to participate in non-academic activities such as booster clubs, fundraisers and school social events. See Tex. Att’y Gen. Op. JC-0371 (2001); Tex. Att’y Gen. Op. LO-98-036 (1998). However, when holding an actual “position” (e.g., teacher or coach – whether voluntary or not), it is advisable to consult your district’s attorney to ensure that the offices are not in conflict under the law.