KBS Reference Desk: Nepotism Prohibition and the Continuous Employment Exception

Q:        Our district has repeatedly renewed one of our longtime teacher’s contracts even though his wife was voted onto our school board a few years ago. The teacher recently expressed his desire to fill a vacant assistant principal position at his campus and has since applied. Some have questioned the teacher’s continued employment and potential promotion. May the spouse remain on the board if the teacher is promoted to principal?

A:        Yes. Under the “continuous employment” exception to the state’s nepotism prohibitions, school districts may employ an educator after his or her spouse is voted onto the school board if the educator was continuously employed for a specified length of time prior to the election. A promotion does not break the continuous employment chain. A board member whose relative works for the district under the continuous employment exception, however, cannot participate in any deliberations or decisions affecting his or her relative’s employment.

            Texas’ anti-nepotism laws provide that a public official, such as a school board member, may not appoint, confirm the appointment of, or vote regarding the employment of a person to a position that will be compensated using public funds if the two are married. Tex. Gov’t Code §§ 573.002, .041. School districts throughout the state, therefore, are generally prohibited from employing a school board member’s spouse.

Several exceptions to the state’s anti-nepotism laws exist, however, including the “continuous employment” exception. See Tex. Gov’t Code §§ 573.061-.062. If an educator qualifies for this exception, then the nepotism prohibition described above is inapplicable, and the educator may continue to work for the district after his or her spouse is elected to the school board. Tex. Gov’t Code § 573.062. An educator may qualify for the continuous employment exception if he or she worked in the district continuously for at least one year if the public voted his or her spouse onto the board in a general election. Id. If the board member was voted onto the board in a special election (rather than a general election), then the educator’s prior employment must be continuous with the district for at least six months. Id. And finally, if the board member was appointed to the board (rather than elected), then the educator’s prior employment must be continuous with the district for at least 30 days. Id.

Importantly, the continuous employment exception applies regardless of the number of positions held in the district. That is, so long as the employment continues for the minimum length of time prior to the election or appointment of the public official, without a break in service, the exception applies. See Tex. Att’y Gen. Op. No. JC-185 (2000).

A board member whose spouse remains employed with the district under the continuous employment exception must not participate in any deliberation, vote, or other action solely affecting his or her spouse’s employment or change in status. Tex. Gov’t Code § 573.062. A board member who violates this provision and participates or takes action related to his or her spouse’s employment may be found guilty of a criminal misdemeanor punishable by a $100 to $1,000 fine. Tex. Gov’t Code § 573.084. Acting on a class of employees for which the spouse is a member, rather than the spouse individually, is permitted. Tex. Gov’t Code § 573.062(b).

Information regarding your district’s restrictions on nepotism may be found in policy DBE. Please contact your local school attorney if you seek additional information or have specific questions.

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