Untitled Texas Attorney General Opinion ( 2000 )

OPF,CE
OFTHEATTORNEY
GENERAL.
STATE
OFTEXAS
JOHN CORNYN
February 24,200O
Mr. James Nelson Opinion No. K-0185
Commissioner of Education
Texas Education Agency Re: Whether a permanent substitute teacher who has
1701 North Congress Avenue been employed as such for six months prior to the
Austin, Texas 78701-1494 election of his sister to school district board has been
continuously employed for the purpose of section
573.062 of the Government Code (RQ-0104-X)
Dear Commissioner Nelson:
On behalf of the La Joya Independent School District (the “District”), your predecessor in
office requested our opinion regarding the continuous-employment exception to the antinepotism
statute, section 573.062 of the Government Code. The District asks whether a “permanent
substitute” teacher may be continuously employed for purposes ofthe nepotism statute, chapter 573
of the Government Code. Assuming that the permanent substitute has an ongoing employment
relationship with the school district, we conclude that the permanent substitute teacher may satisfy
the continuous-employment exception to the statutory nepotism prohibition.
The District’s question is premised upon a situation in which the District hired, in
August 1996, a teacher who had obtained a two-year probationary certification under the Alternative
Certification Program. See Letter from Jose R. Guerrero, Montalvo & Ramirez, General Counsel
to La Joya Independent School District, to Dr. Mike Moses, Commissioner of Education, Texas
Education Agency (July 20,1999) (on tile with Opinion Committee) [hereinafter “Request Letter”].
The District employed the teacher under successive one-year contracts through November 2,1998,
when the teacher resigned his term contract “after losing his certification for failing the exam.”
Id. at 1. When the employee’s resignation became effective, he was immediately hired by the
District as a “permanent substitute teacher in the same teaching position, at a daily rate of $95.00.
The teacher’s duties and the responsibilities remain the same.” Id.
Meanwhile, inMay 1999 the permanent substitute’s sister was elected to the District’s Board
of Trustees. Id. Assuming that the permanent substitute retains his position, the District would like
to hire him on a full-time basis if he becomes certified. See id. The District asks whether
employment as a permanent substitute may constitute “continuous employment” for the purposes
of section 573.062 of the Government Code so that the District may retain him as a permanent
substitute or, should he become certified, promote him. See id.
Mr. James Nelson - Page 2 (JC-0185)
Since the original request was made, the individual employed as a permanent substitute with
the District took a position with the city manager’s office. Accordingly, whether the District may
promote this particular permanent substitute to a certified teaching position is no longer in question.
But because the permanent-substitute arrangement “involves a reasonably common employment
arrangement for school districts in Texas,” you ask that we consider generally whether a permanent
substitute may be continuously employed for the purposes of section 573.062 of the Government
Code, so that a school district may retain or promote a permanent substitute upon the election to the
school board of the permanent substitute’s relative. Letter from Jim Nelson, Commissioner of
Education, Texas Education Agency, to Elizabeth Robinson, Chair, Opinion Committee, Office of
the Attorney General (Jan. 7, 2000). To answer the question generally, we assume that the
permanent substitute has been employed by the school district in that position for six months
immediately prior to the time his or her relative is elected to the school board or for thirty days prior
to the date his or her relative is appointed to the school board. See TEX. GOV’T CODE ANN.
5 573.062(a)(2)(A), (B) (Vernon 1994).
By hiring an individual as a “permanent substitute,” a school district avoids the statutory
requirement that all teachers, teacher interns, or teacher trainees must be certified as such
consistently with sections 21.03 I through 21.057 of the Education Code. See TEX. EDUC. CODE
ANN. 5 21.003 (Vernon 1996); see also id. $5 21.031-.057 (Vernon 1996 & Supp. 2000) (pertaining
to “Certification of Educators”). A certified classroom teacher must be employed under a
probationary contract, a continuing contract, or a term contract. See id. § 21.002(a) (Vernon 1996);
seea1soid.``21.101-.106~emon1996&Supp.2000)(probationarycontract);id.``21.151-.160
(Vernon 1996) (continuing contract); id. $5 21.201-,213 (term contract). Anindividual not certified
to teach may teach if the school district that wishes to employ the individual obtains a teaching
permit from the State Board of Educator Certification. See id. 4 21.055(a). But see id. 5 21.057
(Vernon Supp. 2000) (requiring school district that assigns uncertified teacher to same classroom
for more than thirty consecutive instructional days during same school year to notify parents of
students in that classroom). In this opinion, to clearly distinguish between a‘permanent substitute,”
a certified teacher employed by contract, and a substitute employed on a day-to-day basis, we will
refer to the first as an “uncertified teacher;” to the second as a “certified teacher;” and to the third
as a “substitute teacher.”
Under the antinepotism statutes, a school board generally may not appoint an individual to
a position that is compensated from public funds if the individual is related within the third degree
by consanguinity or within the second degree by affinity. See TEX. GOV’TCODE ANN. @ 573.002,
,041 (Vernon 1994). Because you have asked us to consider the continuous-employment issue
generally, we assume that the uncertified teacher is related within a prohibited degree to a member
of the school district board of trustees.
Two exceptions to this general statutory prohibition allow a governing body to hire the close
relative of a member of the governing body in certain circumstances. First, section 573.061 excepts
the appointment or employment of a substitute teacher by a school district. See id. $ 573.061(6)
(Vernon Supp. 2000). This exception does not apply to a school district’s appointment of a certified
Mr. James Nelson - Page 3 (JC-0185)
teacher. Nor may a school district that wishes to promote a substitute or an uncertified teacher to
a certified teaching position avail itself of this exception.
Second, section 573.062 excepts the appointment or employment of an employee who has
been continuously employed in a particular position for six months before the election of the public
official to whom the individual is related in the prohibited degree. See id. 5 573.062(a)(l), (2)(B)
(Vernon 1994). An individual who has been continuously employed in that position for the requisite
duration may not only retain his or her position but may be the subject of an action affecting the
employment, such as a promotion or raise, if “the public official to whom the individual is related
in a prohibited degree” does not participate in any discussion or vote regarding the individual’s
status, unless the decision concerns “a bona fide class or category of employees.” Id. 5 573.062(b).
Thus, if an uncertified teacher may be said to be “continuously employed” for the purposes of
section 573.062 of the Government Code, and if the uncertified teacher has been continuously
employed as such for the period of time set forth in section 573.062(a)(2), then he or she may be
“promoted” to the rank of certified teacher upon his certification so long as the teacher’s relative on
the school board does not participate in any discussion or vote on the issue in accordance with
section 573.062(b) of the Government Code.
What is meant by “continuous employment” is not defined in the statute. “Continuous”
employment denotes employment “[u]nintetrupted in time. ; connected; unbroken. III OXFORD
ENGLISHDICTIONARY830 (2d ed. 1989); see TEX. GOV’T CODE ANN. 5 311 .Ol l(a) (Vernon 1998)
(requiring that statutory words and phrases be construed consistently with common usage). Whether
in any particular situation an uncertified teacher has an ongoing, unintermpted employment
relationship with a school district is a fact question that cannot be resolved in the opinion process.
See, e.g., Tex. Att’y Gen. Op. Nos. JC-0032 (1999) at 4 (stating that question of fact is beyond
purview of this office); JC-0027 (1999) at 3 (stating the questions of fact cannot be addressed in
attorney general opinion); JC-0020 (1999) at 2 (stating that investigation and resolution of fact
questions cannot be done in opinion process).
Two previous opinions of this office suggest that intermittent, interrupted periods of
employment do not constitute continuous employment. Attorney General Opinion JM-861
concludes that service as a “substitute teacher” does not constitute continuous employment. See Tex.
Att’y Gen. Op. No. JM-861 (1988) at 3. The substitute teacher in that case had “her name. added
to a list of persons available to serve as substitute teachers. . [Hlaving one’s name put on this
‘substitute list’ creates neither a guarantee of being contacted by the school district to serve as a
substitute teacher, nor an obligation to accept a teaching assignment if offered one.” Id. at 2. Thus,
the substitute teacher “was not a party to any continuing contract.” Id. Attorney General Letter
Opinion No. 92-75 similarly concludes that a “regular substitute” cafeteria worker for a school
district is not continuously employed for purposes ofthe nepotism laws. Tex. Att’y Gen. LO-92-75,
at 3. The regular substitute was described as “an individual who has been placed on a list of
substitutes, [who] is regularly called upon to work.” Id. at 2. Because the regular substitute had not
been working under a contract ofcontinuing employment, she did not have “the same guarantees and
obligations as an individual” who had been working under such a contract. Thus, a substitute,
Mr. James Nelson - Page 4 (JC-0185)
employed on an intermittent, day-to-day basis by a school district is not continuously employed for
the purposes of the antinepotism laws.
To the extent Attorney General Opinion JM-861 and Letter Opinion No. 92-75 focus upon
the fact that the substitute employees were not subject to “continuing contracts,” they require
clarification. First, the term “continuing contract” is a term of art in the Education Code referring
to a contract of employment between a school district and a certified teacher, principal, librarian,
nurse, or counselor under sections 21.15 I through 21.160 of the Education Code. See TEX. EDUC.
CODE ANN. 5 21.002 (Vernon 1996). School district employees who have term contracts or
probationary contracts do not have continuing contracts with the school district, see id., yet they may
be continuously employed for the purposes of section 573.062 of the Government Code. Second,
an at-will employee may be continuously employed for purposes of the antinepotism statute, see
Tex. Att’y Gen. Op. No. V-l 142 (1951) at 4, despite the fact that the employee may not contract
with his or her employer to limit either party’s authority to terminate the relationship at will, see
Light v. Centel Cellular Co. of Tex., 883 S.W.2d 642,644 (Tex. 1994).
Rather than focusing on the existence of a “continuing contract,” section 573.062 focuses on
the continuing nature of the employment relationship. Hence, a judge’s “repeated appointments”
ofhis uncle “to represent indigent clients in different cases over a six-year period does not constitute
continuous employment in one position.” Bean v. State, 691 S.W.2d 773,775 (Tex. App.-El Paso
1985, pet. ref d). By comparison, a certified public accountant retained by a school district on a
yearly basis who performed services during only part of the year may qualify for the continuous-
employment exception. See Tex. Att’y Gen. Op. No. JM-45 (1983) at 3.
We conclude that an uncertified teacher who is an at-will employee of a school district may
satisfy the continuous-employment exception to the nepotism prohibition. See TEX. GOV’T CODE
ANN. $3 573.041, .062 (Vernon 1994). As the uncertified-teacher position has been described to us,
an uncertified teacher has an ongoing, unintemtpted employment relationship with the school until
and unless the relationship is terminated by either party:
[T]he district characterizes a“permanent” substitute as a non-
certified person who is employed to fill a teaching vacancy until such
vacancy can be tilled with a certified teacher. The permanent
substitute teacher, unlike other substitute teachers, is not placed on a
substitute list, but rather is given the assignment and is expected to
report to work everyday until a certified teacher is employed to fill
the position or until he is terminated for any other reason. He has
been offered a continuous assignment for an indefinite period oftime,
so he is like any other at-will employee.
Request Letter, supra, at 3-4. Accordingly, should a relative of an uncertified teacher who has been
continuously employed by a school district for the requisite period be appointed or elected to the
school district board, the uncertified teacher may retain his or her position. Additionally, should the
Mr. James Nelson - Page 5 (X-0185)
uncertified teacher become certified as a teacher, the school district board may promote the teacher
to a position as a certified teacher so long as the relative does not participate in the board’s
deliberation or vote on the employment action.
SUMMARY
An individual employed as an uncertified teacher in an at-will
employment relationship with a school district may be continuously
employed for the purposes of section 573.062 of the Government
Code. The uncertified teacher must be employed as such for the
period of time specified in section 573.062 “immediately before the
election or appointment of’ a public official to whom the permanent
substitute is related in third degree by the consanguinity or the second
degree of affinity to retain his or her position. An uncertified teacher
who has been continuously employed for the period specified in
section 573.062 also may be promoted to the rank of certified teacher
(upon receipt of certification) if the related public official does not
participate in the discussion or vote.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee