OPINION NUMBER - 142

ADOPTED - 1993/11/05

SUBJECT - Conflicts of Interest.

REQUESTED BY: Eugene Cerny, Superintendent, Madison Public Schools.

QUESTION: May a member of a school board be employed by the school district as a substitute bus driver?

CONCLUSION

Yes.

FACTS

Madison Public Schools is seeking to hire a substitute school bus driver, but is having difficulty getting applications from qualified individuals. One of the members of the school board has applied for the position. The board wishes to know if the applying school board member is eligible to serve both as a school board member and a substitute bus driver. If so, the board wishes to know if there are special obligations or requirements.

ANALYSIS

Section 49-14,103.01(1) states that a member of any board of any school district is an officer for the purposes of 49-14,103.01 through 49-14,103.06. Section 49-14,103.01(2) states that "no officer may have an interest in any contract to which his or her governing body, or anyone for its benefit, is a party. The existence of such an interest in any contract shall render the contract voidable. . . ." The section goes on to state that the prohibition against an interest shall apply only when the officer or his or her parent, spouse, or child . . . will receive a direct pecuniary fee or commission as result of the contract. Section 49-14, 103.01(3) provides that the prohibition against the interest in the contract does not apply if the interested officer: (1) makes a declaration on the record to the governing body approving the contract regarding the nature and extent of his or her interest prior to the official consideration of the contract; (2) does not vote on the matter of granting the contract; and (3) does not act for the governing body which is a party to the contract as to inspection or performance under the contract in which he or she has an interest.

The relationship between an employee and an employer is one of contract. An employee of a school district has a contract with the school district. Therefore, an individual simultaneously holding the position of school board member and school employee has a prohibited interest in a contract with the school board unless the above steps are taken. That is, the applying board member would need to disclose on the record that he is an applicant for the position. This on-the-record disclosure may be made either by including it in the minutes of a meeting or it may be made in written form and filed with the person who normally keeps records for the school board. The applying school board member would not be permitted to vote on the matter of hiring a substitute bus driver. If the board member were actually hired, he would need to avoid acting on behalf of the school board in determining if the substitute bus driver is actually doing his or her job.

Obviously, the situation discussed can at times be awkward. A school board member is part of the body which ultimately supervises the school superintendent, the principal, the teachers, and other school district employees. While acting in his capacity as a substitute bus driver, the superintendent and others are his supervisors. Section 49-14,101(3) states that "no public official or public employee shall use that person's public office or any confidential information received through the holding of a public office to obtain financial gain, other than compensation provided by law, for himself or herself, a member of his or her immediate family, or a business with which the individual is associated." Therefore, the employee/board member must be scrupulous in avoiding the use of the power of his or her public office for the purpose of securing some form of financial gain. For example, a board member/employee could put pressure on the person who supervises bus drivers so as to increase the opportunity for the substitute to work to the ultimate financial benefit of the substitute. On occasion, matters may come before the school board which pertain to school employees in general and substitute bus drivers in particular. Generally, the school board member/employee would need to abstain from participating or voting on these matters.

The school board should also be aware that the person who normally keeps records for the school board is required to maintain separately from all other records a ledger containing certain information regarding every contract entered into by the governing body in which an officer of the body has an interest. That information must include: (1) the names of the contracting parties; (2) the nature and interest of the officer in question; (3) the date that the contract was approved by the governing body; (4) the amount of the contract; and (5) the basic terms of the contract. See 49-14,103.02. If the school board member declares his or her interest in the contract in writing and the written declaration contains all of the foregoing information, the record keeper may fulfill the obligation to keep a ledger by maintaining a copy of the written disclosure. The ledger is required to be available for public inspection during the normal work hours of the office in which it is kept.

SUMMARY

A school board member may be employed as a substitute bus driver by the school district if he or she follows the proper procedures set forth in 49-14,103.01. The board member must avoid using his or her influence and power as a school board member in order to secure personal financial gain. As a matter of general advice, a public official seeking to hold two public positions at once should review any statutes pertaining to either of those position. Chapter 79 of the State

Statutes governs school board members and school employees. For example, section 79-466 prohibits a school board member from being employed as a teacher in the same school district. While we are unaware of any prohibition in Chapter 79 pertaining to substitute bus drivers and school board members, consultation with the school board's attorney on this issue would be appropriate.