Can a Tennessee school board member also sit on the board of (or be the executive director of) the local teachers' association?

Subject

Whether an elected school board member may simultaneously serve as a board member or executive director of an affiliate professional employees' organization while still satisfying the duties of office under Tenn. Code Ann. §§ 49-2-202 and 49-2-203.

Plain-English summary

Representative Mark White asked the AG whether a school board member can also wear the hat of board member or executive director of the local teachers' association (a "professional employees' organization" under PECCA, the Professional Educators Collaborative Conferencing Act). The AG's answer, in short, is that the doctrine of "incompatibility of offices" does not apply (a teachers' association is a private nonprofit, not a second public office), but the dual role still runs into three serious problems.

First, common-law conflict of interest. Under PECCA, the school board negotiates a binding memorandum of understanding (MOU) with the professional employees' organization on salaries, grievance procedures, insurance, fringe benefits, working conditions, leave, and payroll deductions. A board member who also leads the teachers' association sits on both sides of that table. Tennessee law has long held that a public official cannot place herself in a position where personal or fiduciary interests collide with public duty. Recusal is the proper remedy when the conflict arises. If the official acts anyway, the action is "tainted" and must be invalidated.

Second, the prohibited-interest statute, Tenn. Code Ann. § 12-4-101. If the school board member has any direct or indirect pecuniary interest in the MOU (or any contract she is responsible for voting on or supervising), the statute is triggered. Indirect interests can be cured by public disclosure, but direct interests cannot. The penalty for a violation is severe: under § 12-4-102, the official "shall be dismissed" and is barred from the same or a similar position for ten years.

Third, the consulting-services prohibition, Tenn. Code Ann. § 2-10-124(a). It is an offense for an elected county official to receive a fee, commission, or other compensation for "consulting services" from any entity other than the State, a county, or a municipality. "Consulting services" includes services to advise or assist a person or entity in influencing legislative or administrative action relative to the county represented by the official, or in maintaining, applying for, soliciting, or entering into a contract with that county. An executive director who is paid by the teachers' association to lobby or negotiate the MOU with her own school board appears to fit squarely within that prohibition.

The opinion does not say the dual role is categorically illegal. Whether any specific scenario crosses each statutory line depends on facts. But the warnings stack up enough that anyone considering the arrangement should expect heavy scrutiny, mandatory recusal on PECCA matters, and real risk of dismissal under § 12-4-102 if there is direct compensation tied to the MOU.

What this means for you

If you are a school board member considering joining a teachers' association board

Plan to recuse yourself from every collaborative-conferencing matter, every MOU vote, and every grievance or labor-related decision the board takes. The opinion does not create the recusal obligation, common law does, but the AG signals that recusal is the floor here, not the ceiling. Document your recusals on the record, and have the board's counsel review whether any pecuniary interest you hold in the MOU triggers § 12-4-101. If it does, the safer answer is to step off one of the two boards.

If you are paid by the teachers' association (executive director, paid board member)

Read the consulting-services prohibition (§ 2-10-124(a)) carefully with counsel before accepting compensation. The AG flags that compensation for advising or assisting the association in negotiating with your own school board likely violates the statute. If you are already in the role and paid, consider whether the payment can be restructured to non-prohibited categories, or whether you need to resign one position. Don't rely on good faith; the opinion makes clear "the good faith of the officer is not a consideration."

If you are a teachers' association choosing leadership

If you are recruiting board members or an executive director, ask whether candidates currently hold or seek elected school board seats. The legal exposure flows to the individual but the association's negotiating posture suffers if its leader has to sit out every MOU discussion to comply with conflict-of-interest doctrine.

If you are a school board attorney or board chair

Set a written policy: any board member affiliated with a professional employees' organization recuses from all PECCA matters. That alone resolves most of the common-law concern. The harder question is the § 12-4-101 issue, which is fact-bound and depends on whether the board member is "directly or indirectly interested" in the MOU as a contract. If a board member's compensation, benefits, or position with the organization is tied to the MOU's terms, request a Tennessee Ethics Commission advisory opinion before taking action. The Commission has authority under § 3-6-117(a) to issue formal advisory opinions on these very provisions.

If you are a candidate for school board

Check what other roles you hold. The dual role is not flatly barred, but it constrains your effective participation on the board. If a substantial part of board work involves teacher contracts, leave, grievance procedures, or working conditions, an aggressive recusal posture may make you a less effective board member than you anticipated.

Common questions

Q: Is it just illegal for a school board member to also be on the teachers' association board?
A: The AG does not say it is categorically illegal. The opinion stops at "the potential for a significant clash of duties and loyalties... arises," and prescribes recusal as the common-law remedy. Whether specific actions violate § 12-4-101 or § 2-10-124(a) is fact-dependent.

Q: What happens if a board member with a conflict votes on the MOU anyway?
A: Common-law doctrine says the action is "tainted and must be invalidated." Practically, that opens the MOU and any related decisions to legal challenge. If the board member has a prohibited pecuniary interest, the personal consequence under § 12-4-102 is dismissal and a ten-year ban from the same or similar position.

Q: Does this apply to teachers' associations like the MNEA or M-SCEA specifically?
A: Yes. The opinion uses Metropolitan Nashville Education Association and Memphis-Shelby County Education Association as examples of the kind of professional employees' organization the analysis covers. Both are non-profit corporations, not government entities, so a board seat on either is not a second "public office" for incompatibility-of-offices purposes, but the conflict-of-interest analysis still applies.

Q: Would public disclosure cure the conflict?
A: Public disclosure is the cure for an "indirect" pecuniary interest under § 12-4-101(b). It does not cure a "direct" interest, defined as a contract with the official personally or with a business in which she is the sole proprietor, partner, or controlling owner. And disclosure does not address the consulting-services prohibition or the common-law recusal duty.

Q: What is "collaborative conferencing"?
A: PECCA's name for the formal process where the school board and a professional employees' organization meet to discuss salaries, grievance procedures, insurance, fringe benefits, working conditions, leave, and payroll deductions. If the parties reach agreement, the result is a binding MOU upon board approval (§ 49-5-609(c)).

Q: Who decides whether a specific arrangement is legal?
A: For the consulting-services and pecuniary-interest provisions, the Tennessee Ethics Commission has implementation and enforcement authority under § 3-6-105(a) and can issue formal advisory opinions on uncertain applications under § 3-6-117(a). That is the right place to take a fact-specific question.

Q: Does this analysis apply to municipal school boards too?
A: The AG's analysis focuses on county school boards as elected county officers under § 49-2-201 and Southern v. Beeler. The consulting-services statute, § 2-10-124(a), applies to "any member of a municipal or county legislative body" and "other elected county or municipal official," so the same concerns reach municipal officials performing comparable functions.

Background and statutory framework

Tennessee organizes public education through local boards of education whose members are elected and treated as public officeholders. They take an oath under § 49-2-202(b) to "discharge faithfully" their duties, and they exercise extensive personnel authority under § 49-2-203, including electing tenure-eligible teachers, fixing salaries, dismissing teachers and other staff, approving budgets, and adopting evaluation plans.

PECCA, codified at Tenn. Code Ann. §§ 49-5-601 to -609, allows professional employees of a local board of education to initiate collaborative conferencing with the board, and envisions that "professional employees' organizations" supported by a threshold percentage of professional employees will participate. The conferencing process can produce a binding MOU on a defined list of terms and conditions.

Three layers of conflict-of-interest law sit on top of this structure. The common law forbids public officials from acting when personal or fiduciary interests collide with public duty (recusal is the remedy). Section 12-4-101 codifies a stricter rule against direct or indirect pecuniary interest in contracts the official votes on or supervises, with dismissal and a ten-year ban as the penalty under § 12-4-102. Section 2-10-124(a) bars elected county or municipal officials from receiving compensation for "consulting services" (defined in § 2-10-122(2)) from anyone other than the State, a county, or a municipality.

The doctrine of "incompatibility of offices" is sometimes confused with conflict of interest. The AG distinguishes them: incompatibility applies only when both roles are public offices. A teachers' association board seat or executive directorship is private employment, not a second public office, so incompatibility-of-offices doctrine does not apply. Common-law conflict-of-interest analysis still does.

Citations

Statutes:
- Tenn. Code Ann. § 49-5-602(8), (9), (5), (2) (PECCA definitions)
- Tenn. Code Ann. §§ 49-5-601 to -609 (PECCA generally)
- Tenn. Code Ann. § 49-5-608(a) (terms subject to collaborative conferencing)
- Tenn. Code Ann. § 49-5-609(c) (binding effect of MOU)
- Tenn. Code Ann. §§ 49-2-201 to -214 (county boards of education)
- Tenn. Code Ann. § 49-2-202(b) (oath)
- Tenn. Code Ann. § 49-2-203(a) (board duties)
- Tenn. Code Ann. § 12-4-101 (direct/indirect interest in public contracts)
- Tenn. Code Ann. § 12-4-102 (dismissal and ten-year disqualification)
- Tenn. Code Ann. § 2-10-122(2) (consulting services definition)
- Tenn. Code Ann. § 2-10-124(a) (prohibited compensation for consulting services)
- Tenn. Code Ann. §§ 3-6-105(a), 3-6-117(a) (Tennessee Ethics Commission)

Cases:
- Sitton v. Fulton, 566 S.W.2d 887 (Tenn. Ct. App. 1978), public officeholder defined
- State v. Thompson, 246 S.W.2d 59 (1952), incompatibility-of-offices ipso facto vacancy rule
- Southern v. Beeler, 195 S.W.2d 857 (1946), county school board members are county officers
- Summers v. Cherokee Children & Family Servs., 112 S.W.3d 486 (Tenn. Ct. App. 2002), duty of loyalty for nonprofit directors
- State ex rel. Abernathy v. Anthony, 335 S.W.2d 832 (1960), board member compensation as insurance agent unlawful
- APCO Amusement Co. v. Wilkins Family Restaurants, 673 S.W.2d 523 (Tenn. Ct. App. 1984), when MOUs become binding contracts
- Several PECCA dispute cases cited in n.5 (Lawrence Cnty., Polk Cnty., Blount Cnty., Carter Cnty., Hamblen Cnty., Memphis Educ. Ass'n)

Prior AG opinions:
- Tenn. Att'y Gen. Op. 14-23 (Feb. 26, 2014), public-officer-conflict baseline
- Tenn. Att'y Gen. Op. 13-89 (Nov. 12, 2013)
- Tenn. Att'y Gen. Op. 17-42 (Sept. 21, 2017): MOU enforceability
- Tenn. Att'y Gen. Op. 09-175 (Nov. 6, 2009)
- Tenn. Att'y Gen. Op. 79-42 (Feb. 1, 1979)
- Tenn. Att'y Gen. Op. 12-09 (Jan. 20, 2012)
- Tenn. Att'y Gen. Op. 10-46 (Apr. 12, 2010)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2023/op23-01.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
January 19, 2023
Opinion No. 23-001

Elected School Board Member Serving as Board Member and/or Executive Director of Affiliate Professional Employees' Organization

Question

May an elected board member of a county school system, or local education agency (LEA), simultaneously serve as a board member and/or executive director of an affiliate professional employees' organization as defined in the Professional Educators Collaborative Conferencing Act, Tenn. Code Ann. § 49-5-602(9), and adhere to school board member expectations and fulfill obligations set forth in Tenn. Code Ann. § 49-2-202 and Tenn. Code Ann. § 49-2-203?

Opinion

Because the Professional Educators Collaborative Conferencing Act (PECCA) provides a process for a local board of education and professional employees to enter a binding memorandum of understanding (MOU) regarding terms and conditions of professional employee service and envisions that professional employees' organizations will participate in this process, it is foreseeable—and indeed likely—that an elected school board member who also serves as a board member or as the executive director of an affiliate professional employees' organization will have conflicting interests and conflicting fiduciary duties to the parties on both sides of the collaborative conferencing process. A board member of a county school system is, by virtue of that position, a public officeholder. Under common law principles, when a public officeholder has such a conflict of interests, recusal of the officeholder from participation in the matter in which the conflict arises is appropriate. If the officeholder has a conflict of interests but nevertheless participates in the matter, the action taken by that public officeholder is considered tainted and must be invalidated.

Furthermore, Tenn. Code Ann. § 12-4-101 makes it unlawful for a public official to be directly or indirectly financially interested in a contract that the official has a duty "to vote for, let out, overlook, or in any manner to superintend." Whether an official has an impermissible pecuniary interest will depend on the particular facts and circumstances of any given case, but if the official is "directly or unlawfully indirectly interested" in a contract, that official would be subject to a financial penalty and "shall be dismissed from such office the officer then occupies, and be ineligible for the same or a similar position for ten (10) years." Tenn. Code Ann. § 12-4-102.

Finally, Tenn. Code Ann. § 2-10-124(a) makes it an offense for elected county officials to receive a fee, commission, or any other compensation for "consulting services" from any entity other than the State, a county, or a municipality. It appears that an elected county school board member who receives any compensation from an affiliate professional employees' organization for "consulting services" would be in violation of this statute.

ANALYSIS

1. Doctrine of "Incompatibility of Offices" Does Not Apply

The question posed raises conflict-of-interest concerns. But because the question involves an individual who holds only one public office, it does not implicate the doctrine of "incompatibility of offices," which applies only when two public offices are involved. 63C Am.Jur.2d Public Officers and Employees §§ 60, 62 (2022). A person who serves on a county school board holds a public office, but a person who serves on the board of an affiliate professional employees' organization or as executive director of such an organization does not necessarily hold a public office at all because a "professional employees' organization" is simply "any organization with membership open to professional employees . . . in which the professional employees participate and that exists for the purpose of promoting the professional status and growth of educators and the welfare of students." Tenn. Code Ann. § 49-5-602(9) (emphasis added). For example, a professional association of public-school educators, such as the Metropolitan Nashville Education Association or the Memphis-Shelby County Education Association, fits this definition. Both these associations are non-profit corporations—i.e., not governmental entities; thus, one does not become a public officeholder by serving on the board or as executive director of either of these organizations. See Sitton v. Fulton, 566 S.W.2d 887, 889 (Tenn. Ct. App. 1978) (public officeholder exercises functions concerning the public assigned to him by law); 63C Am.Jur.2d Public Officers and Employees § 9 (2002) (a public officer exercises some portion of governmental sovereign power).

Even though the doctrine of incompatibility of offices does not apply, common-law principles prohibiting public officers from acting when they have a conflict of interest do apply because a conflict of interest can exist even if only one governmental office is involved. Id. at § 60. For example, the officeholder's own personal interests or fiduciary duties owed to another nongovernmental entity may conflict with the fiduciary duties the office-holder owes to the public as a governmental office-holder. Id.; 67 C.J.S. Officers § 347 (2022).

Additionally, a school board member who is also the executive director of an affiliate professional employees' organization could be in violation of Tenn. Code Ann. § 2-10-124(a), the Tennessee law that makes it an offense for elected officials to receive any form of compensation for "consulting services" from any entity other than the State, a county, or a municipality.

2. Conflict of Interest

Under well-established Tennessee law, public officials may not place themselves in a position in which personal interest conflicts with public duty. This policy is reflected in various statutory provisions, as well as common-law doctrine that prohibits a public official from "plac[ing] himself in a position that will subject him to conflicting duties or cause him to act other than for the best interests of the public." Tenn. Att'y Gen. Op. 14-23 (Feb. 26, 2014) (citation omitted); Tenn. Att'y Gen. Op. 13-89 (Nov. 12, 2013) (citation omitted). This policy is not limited to a single category of officials but applies to all officials. Id.

An examination of the respective duties of county school boards and professional employees' organizations under PECCA reveals that a conflict of interest is likely to arise when a person simultaneously serves as a school board member and as a board member or executive director of a professional employees' organization.

a. County School Boards

A board member of a county school system is a public official who performs wide-ranging duties on behalf of the school system that elects him. See Tenn. Code Ann. §§ 49-2-201 to -214. Pertinent here, members of school boards are required to perform various duties that affect school personnel and their working conditions: They elect teachers who have attained or are eligible for tenure and fix the salaries of and make written contracts with them, id. § 49-2-203(a)(1); manage and control all public schools established or that may be established under the board's jurisdiction, id. § 49-2-203(a)(2); purchase all supplies, furniture, fixtures, and material of every kind, id. § 49-2-203(a)(3)(A); dismiss teachers, principals, supervisors, and other employees upon sufficient proof of improper conduct, inefficient service, or neglect of duty, id. § 49-2-203(a)(6); suspend, dismiss, or alternatively place pupils, when the progress, safety, or efficiency of the school makes it necessary or when disruptive, threatening, or violent students endanger the safety of other students or school system employees, id. § 49-2-203(a)(7); approve a budget, id. § 49-2-203(a)(9)(A); develop and implement an evaluation plan for all certificated employees, id. § 49-2-203(a)(12); employ a director of schools, id. § 49-2-203(a)(13)(A); and adopt policies on the employment of substitute teachers, id. § 49-2-203(a)(14).

b. Professional Employees' Organizations Under PECCA

PECCA, Tenn. Code Ann. §§ 49-5-601 to -609, provides that "professional employees" of local boards of education may, voluntarily and with the support of a threshold percentage of their peers, initiate "collaborative conferencing" with representatives of that board. Id. § 49-5-605(b)(1). PECCA envisions that "professional employees' organizations" that are supported by a sufficient threshold of professional employees will participate in the collaborative conferencing process. Id. §§ 49-5-603, -605.

Collaborative conferencing is a formal process by which representatives of the board and representatives of the professional employees may "confer, consult and discuss and . . . exchange information, opinions, and proposals on matters relating to the terms and conditions of professional employee service." Id. § 49-5-602(2). The terms and conditions subject to collaborative conferencing under PECCA comprise: (1) salaries or wages; (2) grievance procedures; (3) insurance; (4) fringe benefits, but not to include pensions or retirement programs of the Tennessee consolidated retirement system or locally authorized early retirement incentives; (5) working conditions; except those working conditions which are prescribed by federal law, state law, private act, municipal charter, or rules and regulations of the state board of education, the department of education or any other department or agency of state or local government; (6) leave; and (7) payroll deductions with certain exceptions. Id. § 49-5-608(a).

If representatives of the professional employees and representatives of the school board can reach an agreement on terms through collaborative conferencing, those terms are then memorialized in an MOU that, upon approval of the board of education, is binding on the parties. Id. §§ 49-5-602(5); -609(c).

c. Common-law Conflict of Interest

Because PECCA provides a process for a local board of education and professional employees to enter a binding MOU regarding terms and conditions of professional employee service and envisions that professional employees' organizations will participate in this process, it is foreseeable—and indeed likely—that an elected school board member who also serves as a board member or as the executive director of a professional employees' organization will have conflicting interests and conflicting fiduciary duties to the parties on both sides of the collaborative conferencing process, as explained below.

As a school board member, the individual must act primarily for the benefit of the public. 63C Am.Jur.2d Public Officers and Employees § 237 (2022). A school board member is required to discharge all duties of the office with undivided loyalty and perform those duties faithfully. Id.; see Tenn. Code Ann. § 49-2-202(b). This same individual, though, as board member or executive director of the professional employees' organization would also owe a duty of loyalty to the professional employees' organization, the interests of which may be in conflict with the interests of the public. See Summers v. Cherokee Children & Family Servs., Inc., 112 S.W.3d 486, 504 (Tenn. Ct. App. 2002). And, if the same individual stands to benefit personally from the MOU, that individual also has a conflict based on a personal interest. See 67 C.J.S. Officers § 347 (2022).

Thus, the individual's duty as a board member or director of the professional employees' organization to act in the interest of the organization and its members could conflict with his or her duty to act in the public interest when negotiating or approving an MOU as a member of the school board. Such a conflict of interests would prevent the individual from exercising his or her respective duties in a completely objective manner.

And the conflict of interest does not necessarily end once an MOU goes into effect. If difficulties arise in the performance of the contract, as they often do, the individual would have to decide whether to negotiate against or sue an entity on whose board he sits. And substantial conflicts could arise during the litigation process when the individual is faced with making decisions about the litigation.

Accordingly, the potential for a significant clash of duties and loyalties—i.e., a significant conflict of interests—arises when a school board member also serves as a board member or executive director of a professional employees' organization. Under common law principles, when conflicts of interest arise between an officeholder's private interests and public duties, it is proper that the office-holder recuse himself from the matter in which the conflict arises. Common-law policy dictates that an official not place himself in a position in which personal interest may conflict with public duty. "The good faith of the officer is not a consideration because the policy exists to prevent an officer from being influenced by anything other than the public good." Tenn. Att'y Gen. Op. 12-09 (Jan. 20, 2012).

Of course, whether a public official has a conflict of interest in any given situation would depend on all facts and circumstances; but once a conflict of interest is established, any action taken by that official is considered tainted and must be invalidated. 67 C.J.S. Officers § 347 (2022).

d. Prohibited Interest in Public Contract

Furthermore, if the school board member has a direct or indirect pecuniary interest in an MOU, statutory conflict-of-interest provisions would apply. See Tenn. Att'y Gen. Op. 09-175 (Nov. 6, 2009); Tenn. Att'y Gen. Op. 79-42 (Feb. 1, 1979); see, e.g., State ex rel. Abernathy v. Anthony, 206 Tenn. 597, 599-600, 335 S.W.2d 832, 833 (1960) (unlawful for member of county school board to receive compensation as agent for insurance policies on schools).

State law makes it unlawful for a public official to be financially interested in "any contract" that the public official has to vote for or supervise. See Tenn. Code Ann. § 12-4-101. The law prohibits a public official from being "directly interested" in a contract that the official has a duty "to vote for, let out, overlook, or in any manner to superintend." Tenn. Code Ann. § 12-4-101(a)(1). "Directly interested" is defined as "any contract with the official personally or with any business in which the official is the sole proprietor, a partner, or the person having the controlling interest." Id. And the law prohibits a public official from being "indirectly interested" in a contract that the official has a duty "to vote for, let out, overlook, or in any manner to superintend" unless the official publicly acknowledges the interest. Id. § 12-4-101(b). "Indirectly interested" is defined as "any contract in which the officer is interested but not directly so . . . ." Id.

In short, both direct and indirect pecuniary interests as defined, respectively, by statute are prohibited by law, but there is an exception for indirect interests that the individual publicly discloses. See id. § 12-4-101(a) and (b). Whether a prohibited pecuniary interest—direct or indirect—exists in any given situation will depend on the particular facts and circumstances. And if the official has a prohibited direct interest or indirect interest that is not publicly acknowledged, he or she would be subject to a financial penalty and "shall be dismissed from such office the officer then occupies, and be ineligible for the same or a similar position for ten (10) years." Id. § 12-4-102.

3. Prohibited "Consulting Services"

Tennessee law further provides that "[i]t is an offense for any member of a municipal or county legislative body, member-elect of a municipal or county legislative body, or other elected county or municipal official to knowingly receive a fee, commission or any other form of compensation for consulting services" from any entity other than the State, a county, or a municipality. Id. § 2-10-124(a) (emphasis added).

"Consulting services" with respect to an elected municipal or county official . . . means services to advise or assist a person or entity in influencing legislative or administrative action, as that term is defined in § 3-6-301, relative to the municipality or county represented by that official. "Consulting services" with respect to an elected municipal or county official . . . also means services to advise or assist a person or entity in maintaining, applying for, soliciting or entering into a contract with the municipality or county represented by that official. . . .

Id. § 2-10-122(2).

Because county school board members are elected, id. § 49-2-201, and deemed "county officers," Southern, 183 Tenn. at 289, 195 S.W.2d at 864, they appear to be subject to Tenn. Code Ann. § 2-10-124(a). See Tenn. Att'y Gen. Op. 10-46 (Apr. 12, 2010). Consequently, a county school board member who receives a fee, commission, or any other form of compensation from an affiliate professional employees' organization would seemingly violate the statute if the school board member performs "consulting services" for the professional employees' organization.

JONATHAN SKRMETTI
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Assistant Solicitor General

Requested by:
The Honorable Mark White
State Representative
425 Rep. John Lewis Way N.
Suite 624, Cordell Hull Building
Nashville, Tennessee 37243