ATTORNEY GENERAL OF TEXAS GREG ABBOTT

Mr. Robert Scott Commissioner ofEducation Texas Education Agency 1701 North Congress Avenue Austin, Texas 78701-1494
Dear Commissioner Scott: November 30, 2009
Opinion No. GA-0749 Re: Application ofEducation Code section 11.063 to former school districttrustee placedinhis district by a school staffing company (RQ-0806-GA)

You request an opinion on Education Code section 11.063, which provides that "[a] trustee of an independent school district may not accept employment with that school district until the first anniversary ofthe date the trustee's membership onthe board ends.'" TEx. EDUC. CODE ANN. § 11.063 (Vernon 2006). You inquire on behalfofthe Red Oak Independent School District (the "ROISD" or "district") about the application of this statute to a trustee who resigned from the ROISD Board ofTrustees and is employedby athird partythat contracts withthe district for staffing purposes. 2 Request Letter at 1; Attachment at 1-2. Specifically, you ask whether section 11.063 prohibits the former ROISD trustee from being placed at the ROISD school district by a third-party employer "before the first anniversary ofthe date the trustee's membership on the board ended." Attachment at 2; TEx. EDUC. CODE ANN. § 11.063 (Vernon 2006). Initially, we note that the answer to this question will depend upon the facts of the relationship among the district, the third-party company, and the former trustee. We cannotresolve fact questions in an attorney general opinion, and thus we cannot give a definitive answer to your question. See Tex. Att'y Gen. Op. Nos. GA-0459 (2006) at 3-4, 0-3382 (1941) at 5. We can, however, generally advise you about the circumstances under which section 11.063 applies. We begin with the language of section 11.063. This statute bars a former trustee from accepting "employment" withthe school district. TEX. EDUC. CODEANN. § 11.063 (Vernon 2006). Education Code chapter 11 does not define "employment" nor do we find a definition ofthis term in any relevant administrative rule. Words in statutes are to be read in context and construed according to the rules ofgrammar and common usage. See TEX. GOV'T CODE ANN. § 311.011(a)

lSee Request Letter at 1 (available athttp://www.texasattomeygeneral.gov). 2See Letter on behalfofthe ROISD to Robert Scott (attached to Request Letter) [hereinafter Attachment].Mr. Robert Scott

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(Vernon 2005). Dictionaries have defined "[ e]mployment" as "[t]he state ofbeingemployed.,,3 See Powell v. Stover, 165 S.W.3d 322, 326 (Tex. 2005); Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 196n.19 (Tex. 2004)(courtswillconsultadictionary to determine the common meaning ofa word). A person who accepts employment with a school district becomes the employee ofthe district. 4 School district personnel are chosen by the school boardonrecommendationofthe superintendentof the school district, unless final authorityfor those decisions is delegated to the superintendent. See 

### TEx. EDUC. CODE ANN. 

### § 11.1513(a)(1)-(2), (b) (Vernon Supp. 2008) (school boardemploymentpolicy). The superintendentis also responsible for the assignment, supervision, and evaluation of district personnel. See id. 

### § 11.201(d)(2). Prioropinions of this officehave considered, inconnectionwithprovisions otherthansection 11.063, whether an individual performing services for the school district is an employee of the district. Attorney General Opinion GA-0127 concluded that a trustee was not an employee ofthe district where a private umpires' association assigned him to officiate ball games in his school district. See Tex. Att'y Gen. Op. No. GA-0127 (2003) at 2 (addressing common-law doctrine of incompatibility). In reaching this conclusion, the opinion noted that the trustee was not appointed to serve as an umpire bytheboard oftrustees, and the districthadno supervisory authorityoverhim. See id. Attorney General Opinion GA-0018 addressed contracts between school districts and commercial enterprises that employed retired teachers and supplied them to the school districts on a temporary basis. See Tex. Att'y Gen. Op. No. GA-0018 (2003) at 1; see also 

### TEx. EDUC. CODE ANN. 

### § 11.157 (Vernon 2006) (a board oftrustees ofan independent school district may contract with a public or private entity for educational services). The opinion considered whether a retired teacher working at a school under such arrangement would revoke his retirementbenefits pursuant to Texas Government Code section 824.005(b), which provides for revocation "if the person becomes employed in any position in a public school" during the month after his retirement. 

### TEx. GOV'TCODEANN. § 824.005(b)(Vernon2004). AttorneyGeneralOpinionGA-0018 concludedthat the contract in question would not cause the retired educatorto lose his retirement benefits because the school districthad contracted withthe third-party commercial enterprise and nottheretiree. Nor was the retired teacher a school district employee within Education Code section 22.051(a), which provides a limitedgrantofimmunityfor aprofessional employee ofa school district.5 See Tex. Att'y Gen. Op. No. GA-0018 (2003) at 3-4 (discussing predecessor ofsection 22.0511(a)). Ajudicial decision under the whistleblower statute also addressed the distinction between a school district employee and an individual hired by a third party to provide services for a school

3BLACK' SLAW DICTIONARY 604 (9th ed. 2009); MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 408 (lIth ed.2003).
4MERRlAM_WEBSTER'S COLLEGIATEDICTIONARY408 (lithed. 2003) ("one employedby anotherusu. for wages or salary"). 5Section22.051 was renumbered to section 22.0511 after GA-0018 was issued. See Act ofJune 1,2003, 78th Leg., R.S., ch. 204, § 15.01, sec. 22.0511, 2003 Tex. Gen. Laws 847, 890.Mr. Robert Scott

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district. SeeAlanizv. GalenaParkIndep. Sch. Dist., 833 S.W.2d 204, 205-07 (Tex. App-Houston [14th Dist.] 1992, no writ); see also 

### TEx. GOV'T CODE ANN. 

### §§ 554.001-.010 (Vernon 2004) (whistleblower statute). Like the two attorney general opinions, Alaniz determined whether an individual who performed services for a school district was a district employee by considering a number offactors related to his employment, including who had authority to supervise him. See Alaniz, 833 S.W.2d at 206. TheAlaniz court held that an individual who was under contract with a private custodial companythat assigned himto perform custodial services at a school district was not a "public employee" within the definition ofthat term in the whistleblower statute. See id. at 205-07; see also 

### TEx. GOV'T CODE ANN. 

### § 554.001(4) (Vernon 2004) (defining a "[P]ublic employee" as "an employee or appointed officer other than an independent contractor who is paid to perform services for a state or local governmental entity"). In reaching its decision, the court found 

### itsignificantthatthe custodiancontractedonlywiththeprivatecompany, andthatthe contract described his duties, set his compensation, and provided that the company would supervise him. 6 SeeAlaniz, 833 S.W.2dat206. In summary, the custodianwas an employee ofthe private company, which provided services to the district as an independent contractor, and not a school district employee. In reaching a determination as to whether a company's placement ofa former trustee at the district priorto the first anniversary ofthedate the trustee's membership onthe board ended would violate section 11.063, a court would likely examine the relationship betweenthe parties in orderto determine whether the trustee was actually employed by the school district orthe third party. Ifall the relevant facts, such as contract terms, control and supervision, and source ofpayment, showed that an individual was employedbya third-party company andnotbythe school district, we believe a court would likely conclude that his employment would not be subject to the restriction in Education Code section 11.063, eventhough the private company assigned himto perform services for the school district. See Alaniz, 833 S.W.2d at 206; Tex. Att'y Gen. Op. Nos. GA-0127 (2003) at 3 n.5, GA-OO 18 (2003) at3-4. If, however, therelevantfacts demonstratedthatthe former trustee was employedbythe school district, section 11.063 wouldbarhimfrom such employment with the school district until the first anniversary ofthe date his membership onthe board ended. See 

### TEx. EDUC. CODE ANN. § 11.063 (Vernon 2006).

60ther factors cited by the court included that the private company hired, paid wages, and withheld social security and income taxfor the individual, and it solely directed and supervisedhis work, providedhimwith equipment, and discharged him. SeeAlaniz, 833 S.W.2d at 206.Mr. Robert Scott

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### SUMMARY Section 11.063 ofthe Education Code bars a school district trustee from accepting employment with the school district until the first anniversary ofthedate his membership onthe school boardends. If, after examining the relationship among the district, the third-party company and the trustee, a court were to find that a third-party company employed the former trustee and he was not employed by the school district, we believe that a court would likely conclude that his employment would not be barred by Education Code section 11.063, even though the private company assigned him to perform services for the school district.

ANDREW WEBER First Assistant Attorney General JONATHAN K. FRELS Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Susan L. Garrison Assistant Attorney General, Opinion Committee