OPF,CE OFTHE ATTORNEY

GENERAL.

STATE OFTEXAS JOHN CORNYN

February 24,200O

Mr. James Nelson Commissioner of Education Texas Education Agency 1701 North Congress Avenue Austin, Texas 78701-1494 Opinion No. K-0185

Re: Whether apermanent substitute teacher who has been employed as such for six months prior to the 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 forpurposes 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, ateacher who had obtained atwo-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 adaily rate of $95.00. The teacher’s duties and the responsibilities remain the same.” Id.
Meanwhile, inMay 1999the permanent substitute’s sister was elected tothe District’s Board ofTrustees. 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 apermanent 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 asapermanent substitute with the District took aposition with the city manager’s office. Accordingly, whether the District may promote this particular permanent substitute to acertified teaching position isno longer in question. But because the permanent-substitute arrangement “involves a reasonably common employment arrangement for school districts inTexas,” you ask that we consider generally whether apermanent substitute may be continuously employed for the purposes of section 573.062 of the Government Code, so that aschool district may retain orpromote apermanent 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 orher relative is elected tothe school board or for thirty days prior to the date his or her relative is appointed to the school board. See TEX. GOV’T CODEANN. 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.521.003 (Vernon 1996); see also id.$521.031-.057 (Vernon 1996 & Supp. 2000) (pertaining to “Certification of Educators”). A certified classroom teacher must be employed under a probationary contract, acontinuing contract, or aterm 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.$521.201-,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. 421.055(a). But see id. 521.057 (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 inthat classroom). Inthis opinion, to clearly distinguish between a‘permanent substitute,”
acertified teacher employed by contract, and asubstitute employed on aday-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
aposition that is compensated from public funds ifthe individual isrelated within the third degree by consanguinity or within the second degree by affinity. See TEX.GOV’TCODEANN. @ 573.002, ,041 (Vernon 1994). Because you have asked us to consider the continuous-employment issue generally, we assume that the uncertified teacher isrelated within aprohibited degree to amember of the school district board of trustees.

Two exceptions tothis general statutory prohibition allow agoverning body tohire the close relative of amember ofthe 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 aschool district’s appointment of acertifiedMr. James Nelson - Page 3 (JC-0185)

teacher. Nor may a school district that wishes to promote a substitute or an uncertified teacher to
acertified 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 aparticular position for six months before the election ofthe public official to whom the individual is related in the prohibited degree. See id. 5573.062(a)(l), (2)(B) (Vernon 1994). An individual who has been continuously employed inthat 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 apromotion 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 “abona fide class or category of employees.” Id. 5573.062(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 asthe 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’TCODEANN.5 311.Oll(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 asa“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 ateaching assignment ifoffered one.” Id.at 2. Thus, the substitute teacher “was not aparty to any continuing contract.” Id. Attorney General Letter Opinion No. 92-75 similarly concludes that a “regular substitute” cafeteria worker for a school district isnot continuously employed forpurposes 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] isregularly called upon to work.” Id.at2. Because the regular substitute had not been working under acontract ofcontinuing employment, she did nothave “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 aschool 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 aterm 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 ofthe 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 ofthe 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 Lightv. Centel CellularCo. ofTex., 883 S.W.2d 642,644 (Tex. 1994).

Rather than focusing on the existence ofa“continuing contract,” section 573.062 focuses on the continuing nature of the employment relationship. Hence, ajudge’s “repeated appointments” ofhis uncle “torepresent indigent clients indifferent cases over asix-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 continuousemployment 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 aschool 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 asanoncertified person who isemployed to fill ateaching 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 acertified teacher is employed to fill the position or until he is terminated for any other reason. He has been offered acontinuous assignment for anindefinite period oftime,
so he is like any other at-will employee. Request Letter, supra, at 3-4. Accordingly, should arelative of anuncertified 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 orher position. Additionally, should theMr. James Nelson - Page 5 (X-0185)

uncertified teacher become certified as ateacher, 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 anuncertified teacher in an at-will employment relationship with aschool 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’ apublic official to whom the permanent substitute isrelated inthird degree by the consanguinity orthe second degree of affinity toretain his orher position. An uncertified teacher who has been continuously employed for the period specified in section 573.062 also may be promoted tothe rank ofcertified teacher (upon receipt of certification) ifthe 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