Can a Louisiana state education board employee also serve on a local school board?

Plain-English summary

A staff member of Louisiana's State Board of Elementary and Secondary Education, or BESE, asked whether she could also hold an elected local school-board seat. The Attorney General said no. The BESE position was employment in the state executive branch, and R.S. 42:63(D) prohibited combining state employment with that local elective office.

The AG considered R.S. 42:66(B), an exception for school teachers and people employed professionally in an educational institution. BESE regulated educational institutions, but was not itself one, the opinion reasoned. Its staff member therefore could not use that exception. The AG confined its answer to the described positions.

Currency note

This opinion was issued in 2006. Later amendments, court decisions, or AG opinions may have changed the dual-officeholding rules. Check current law and the exact employer before acting.

What this means for you

BESE staff considering school board service

Check your employing entity before assuming a teaching or education exception applies. The AG distinguished work for the state education regulator from work in a school or other educational institution and found the proposed elected seat incompatible with the BESE job.

Election and personnel officials

Review both the statewide bar on combining state employment with local elective office and the scope of the educational exception. This opinion says the BESE regulator is not the educational institution described in the exception, despite its work with schools.

Common questions

Why did state education employment trigger the prohibition?

The AG read R.S. 42:62(3) and its executive-branch definition as covering a paid BESE staff job. R.S. 42:63(D) then barred holding state employment at the same time as the local school-board office.

Didn't the teacher exception apply?

No. R.S. 42:66(B) covered school teachers and people in a professional educational capacity at an educational institution. The AG treated BESE as a regulator of schools, not an educational institution employing the requester in that capacity.

Would lack of compensation change the answer?

The opinion said compensation or lack of it was not relevant to whether BESE was an educational institution for the exception. It did not analyze a different unpaid position.

Background and statutory framework

R.S. 42:62(3) defined employment, while the quoted executive-branch definition included BESE. R.S. 42:63(D) prohibited local elected office alongside state employment. R.S. 42:66(B) supplied a professional education exception, but the AG found it unavailable because the requester worked for a state regulatory board rather than an educational institution.

Citations

• R.S. 42:62(3) (public employment definition).
• R.S. 42:63(D) (state employment and local elective office).
• R.S. 42:66(B) (education exception).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/06-0221

Original opinion text

August 8, 2006
OPINION 06-0221

78 DUAL OFFICEHOLDING
Ms. Barbara Reich Freiberg
R.S. 42:62; R.S. 42:63; R.S. 42:66
224 Amherst Avenue
An employee of the State Board of Elementary and Secondary
Education (BESE) holds employment in the executive branch of
Baton Rouge, LA 70808
state government and is prohibited from holding the local elective
office of school board member.
Dear Ms. Freiberg:

You advise this office that you are currently employed as a member of the staff of the State Board of Elementary and Secondary Education (BESE). You ask if you may also hold the local elective office of school board member.

An employee of the BESE board holds employment in the executive branch of government of this state pursuant to R.S. 42:62(3) and R.S.42:62(6), providing:

(3) "Employment" means any job compensated on a salary or per diem basis, other than an elective or appointive office, in which a person is an employee of the state government or of a political subdivision thereof.

(6) The executive branch of state government includes the following named officers and all other officers, agents, employees, or other persons holding or exercising an employment with them, namely, the governor; lieutenant governor; secretary of state; attorney general; treasurer; commissioner of agriculture; commissioner of insurance; superintendent of education; members of the State Civil Service Commission, the Public Service Commission, the Board of Regents, the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, the Board of Supervisors of Southern University and Agricultural and Mechanical College, the State Board of Elementary and Secondary Education, the Board of Trustees for State Colleges and Universities, and the State Bond Commission. The executive branch shall also include the officers, members, agents, and employees of any department, office, agency, instrumentality, board, commission, or other entity created by the constitution or by law whose functions are not primarily legislative, judicial, or local in nature or operation. (Emphasis added).

Page 2

Ms. Barbara Freiberg
OPINION 06-0221
Page 2

A school board member holds local elective office in a political subdivision of this state, as defined by R.S. 42:62(1):

(1) "Elective office" means any position which is established or authorized by the constitution or laws of this state or by the charter or ordinances of any political subdivision thereof, which is not a political party office, and which is filled by vote of the citizens of this state or of a political subdivision thereof.

R.S. 42:63(D) prohibits one from holding state employment and the local elective office of school board member, as that statute provides, in pertinent part.

D. No person holding an elective office in a political subdivision of this state shall at the same time hold another elective office or full-time appointive office in the government of this state or in the government of a political subdivision thereof. No such person shall hold at the same time employment in the government of this state, or in the same political subdivision in which he holds an elective office.... (Emphasis added).

There is an exemption in the law which permits one who is employed in a “professional educational capacity in a grade school, high school, or other educational institution” to also hold local elective office. R.S. 42:66(B) states:

B. Nothing in this Part shall be construed to prevent a school teacher or person employed in a professional educational capacity in a grade school, high school, or other educational institution, parish or city school board from holding at the same time an elective or appointive office.

In order for the exemption above to be applicable to you, you must be employed in a professional educational capacity by an educational institution. While the dual- officeholding laws do not specifically define “educational institution”, we interpret that phrase to mean a school of learning accredited by the state. There are definitions elsewhere in the laws which prove instructive. For instance, R.S. 42:55(2) provides:

“Student in a public educational institution” shall mean and include every student enrolled in any public school of the State, or in any state- supported trade school, vocational school, college, or university.

Further, R.S. 51:211(I) provides the following definition:

The term “educational institution” as used herein means any institution licensed, approved, or funded by the state to perform educational services.

Page 3

Ms. Barbara Freiberg
OPINION 06-0221
Page 3

You are not employed by an educational institution; rather, you are employed by the entity which is charged with regulatory authority over educational institutions.1 For this reason alone, the exemption is inapplicable to you. A determination that your employer is not an educational institution would necessarily lead us to conclude that you are not employed in a professional educational capacity as contemplated by the statute. Compensation, or lack thereof, is not relevant to this determination. See Attorney General Opinions 02-292 and 90-521, copies attached.

We refrain from addressing the other general dual-officeholding questions raised in your correspondence as these questions are not relevant to your particular situation. This opinion is limited to the facts related to your personal proposed combinations of offices/employments.

We conclude that state law prohibits you in your full-time employment as a state employee from holding the local elective office of school board member. Should you have other questions in which we may provide assistance, please contact this office.

Very truly yours,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

BY: ______ KERRY L. KILPATRICK
ASSISTANT ATTORNEY GENERAL
KLK:ams

1
LSA-Const. Art. 8, § 3 (1974) provides in pertinent part:
§ 3. State Board of Elementary and Secondary Education
Section 3. (A) Creation; Functions. The State Board of Elementary and Secondary Education is created as a body corporate. It shall supervise and control the public elementary and secondary schools and special schools under its jurisdiction and shall have budgetary responsibility for all funds appropriated or allocated by the state for those schools, all as provided by law. The board shall have other powers, duties, and responsibilities as provided by this constitution or by law, but shall have no control over the business affairs of a city, parish, or other local public school board or the selection or removal of its officers and employees; however, the board shall have the power to supervise, manage, and operate or provide for the supervision, management, and operation of a public elementary or secondary school which has been determined to be failing, including the power to receive, control, and expend state funds appropriated and allocated pursuant to Section 13(B) of this Article, any local contribution required by Section 13 of this Article, and any other local revenue available to a school board with responsibility for a school determined to be failing in amounts that are calculated based on the number of students in attendance in such a school, all in the manner provided by and in accordance with law.

Page 4

Ms. Barbara Freiberg
OPINION 06-0221
Page 4

SYLLABUS

OPINION 06-0221

78 DUAL OFFICEHOLDING

R.S. 42:62; R.S. 42:63; R.S. 42:66

An employee of the State Board of Elementary and Secondary Education (BESE) holds employment in the executive branch of state government and is prohibited from holding the local elective office of school board member.

Ms. Barbara Reich Freiberg
224 Amherst Avenue
Baton Rouge, LA 70808

Date Received:
Date Released: August 8, 2006

Kerry L. Kilpatrick
Assistant Attorney General