If a Tennessee director of schools breaks the rule against side contracts or extra paid work, does the school board have to fire them, or can the board choose a lighter penalty?

Subject

Whether the school board has discretion in applying the dismissal consequence in Tenn. Code Ann. § 49-2-301(c) when a director of schools is duly found to have violated subsection (c).

Plain-English summary

Representative Jody Barrett asked a single, clean question. Section 49-2-301(c) makes it a Class C misdemeanor for a director of schools to take other contracts under the board, take additional compensation, act as principal or teacher in any school, or own a school warrant beyond their permitted compensation. The same subsection says a director who violates it "shall also be dismissed from the director's position." Does "shall" actually mean "must," or can the school board choose a lighter consequence?

The AG said "shall" means must. Once a director is duly found to have violated subsection (c), the board has no discretion. Dismissal follows.

The reasoning is standard Tennessee statutory construction. The default reading of "shall" in a statute is mandatory, and here the legislative purpose reinforces that default. The legislature designed the director role as a full-time administrative position, replacing the elected superintendent of public instruction. Subsection (c) blocks the kind of moonlighting that would interfere with that full-time commitment. The word "also" right after "shall" tells the reader that dismissal stacks on top of any criminal sanction for the Class C misdemeanor; it is not in lieu of the criminal sanction, and it is not a menu the board can pick from.

The opinion does not address procedural questions (how the violation is "duly found," what process is owed, who initiates the action, or what happens if the director resigns first). It also does not address whether the same rule applies to assistant directors, interim directors, or contract-employed directors who lack tenure. Boards confronted with a fact pattern should treat the dismissal piece as automatic once a violation is established.

What this means for you

If you are a school board member

Once a director of schools has been duly found to have violated subsection (c), you do not have a discretionary call. You are required to dismiss. Build that into your enforcement procedures: do not weigh dismissal against lesser discipline. The legal question for the board is whether a violation occurred and was duly found, not what to do about it.

If you are a director of schools

Read § 49-2-301(c) carefully and treat it as a hard line. Don't take side contracts under your own board, don't accept additional compensation for performing services, don't act as principal or teacher in any school, and don't own school warrants beyond what is allowed for your director role. A duly found violation is a Class C misdemeanor and carries automatic dismissal under the statute as the AG reads it. The "good-faith" argument or "small amount" argument does not preserve your job.

If you are a school district general counsel

Document any potential conflict carefully and confirm whether the conduct falls within subsection (c) before treating dismissal as automatic. The AG's opinion handles only the consequence half; the threshold question of whether a violation has occurred and has been "duly found" is fact-bound and should be developed with care. If the violation is established, advise the board that "shall" leaves no discretion.

If you are negotiating a director-of-schools contract

If you are the director, understand that a § 49-2-301(c) violation overrides any contract protection. The statute will operate even if the employment contract has its own discipline ladder. From the board's side, make sure the contract reflects the statutory dismissal consequence so there is no later argument that the contract gives the director rights inconsistent with the statute.

Common questions

Q: What does subsection (c) actually prohibit?
A: Four categories: taking any other contract under the board of education; performing any other service for additional compensation; acting as principal or teacher in any school; and owning a school warrant other than that allowed for the director's service as director.

Q: What is a school warrant?
A: In school finance, a "warrant" is a written instrument directing payment from school funds. The prohibition is meant to keep the director from holding payment instruments beyond what is owed to her for her director role.

Q: Is subsection (c) a strict-liability rule?
A: The opinion does not address that. It addresses the consequence question. The criminal piece (Class C misdemeanor) carries traditional criminal-law mens rea analysis, and the dismissal piece is triggered once a violation is "duly found."

Q: Can the board impose a lesser sanction after a violation is duly found?
A: According to the AG, no. The board has no discretion as to the consequence. The opinion reads "shall" as mandatory and reinforces that reading with the word "also" in the statute (signaling that dismissal stacks with the misdemeanor sanction rather than substituting for any other discipline).

Q: Who decides whether a violation occurred?
A: The opinion uses the phrase "duly found" but does not specify the procedural mechanism. In practice this can come from a criminal conviction, a board investigation with appropriate due process, or another adjudicative process. Counsel should map out the right procedure before triggering dismissal.

Q: Does this affect interim or acting directors?
A: The statute applies to "any director." The AG opinion does not draw distinctions among interim, acting, or contract directors. Board counsel should evaluate the facts of each role.

Background and statutory framework

When the Tennessee General Assembly converted the elected superintendent of public instruction into an appointed director of schools, the design was for a full-time administrative role, accountable to the local school board and dedicated to the work of running the school system. Section 49-2-301 sets out qualifications and duties of the director. Among those, the director must give "full time and attention to the duties of the director's position" (subsection (b)(1)(V)) and ensure the laws and rules of the state and the local board are faithfully executed (subsection (b)(1)(A)).

Subsection (c) reinforces the full-time-attention norm by criminalizing four kinds of side activity (other contracts under the board, paid additional services, doubling as principal or teacher, holding extra school warrants) and by adding mandatory dismissal as a civil consequence. The statute uses the word "shall" twice in the consequence sentence, and the AG's reading takes both literally.

Tennessee statutory-construction doctrine is well-developed on the meaning of "shall." The default rule is that "shall" is mandatory. Stubbs v. State, 393 S.W.2d 150, 154 (Tenn. 1965). Courts confirm the default by looking at the entire statute, its purpose, and the consequences of one reading versus the other. Presley v. Bennett, 860 S.W.2d 857, 860 (Tenn. 1993). When the provision relates to "the essence of the thing to be done," and compliance is essential to the validity of the act, "shall" is mandatory. Holdredge v. City of Cleveland, 402 S.W.2d 709, 713 (Tenn. 1966). The AG's analysis applies that doctrine straightforwardly here. The full-time-attention purpose is the essence of the legislation; subsection (c) is the enforcement teeth; reading "shall" as discretionary would gut the enforcement mechanism.

The word "also" in the dismissal sentence reinforces the mandatory reading. "Also" signals that dismissal is in addition to whatever other sanctions follow from the misdemeanor charge. It would make little sense to read "also" as carving out board discretion when its function is to add a layer.

Citations

Statutes:
- Tenn. Code Ann. § 49-2-301(a) (director of schools as administrative position)
- Tenn. Code Ann. § 49-2-301(b)(1)(A) (faithful execution duty)
- Tenn. Code Ann. § 49-2-301(b)(1)(V) (full time and attention)
- Tenn. Code Ann. § 49-2-301(c) (prohibition and dismissal)

Cases on construction of "shall":
- Stubbs v. State, 393 S.W.2d 150 (Tenn. 1965)
- Emory v. Memphis City Sch. Bd. of Educ., 514 S.W.3d 129 (Tenn. 2017)
- Home Builders Ass'n of Middle Tennessee v. Williamson Cnty., 304 S.W.3d 812 (Tenn. 2010)
- Gray v. Cullom Mach., Tool & Die, Inc., 152 S.W.3d 439 (Tenn. 2004)
- Sanford Realty Co. v. City of Knoxville, 110 S.W.2d 325 (Tenn. 1937)
- Gabel v. Lerma, 812 S.W.2d 580 (Tenn. Ct. App. 1990)
- Presley v. Bennett, 860 S.W.2d 857 (Tenn. 1993)
- Holdredge v. City of Cleveland, 402 S.W.2d 709 (Tenn. 1966)
- Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300 (Tenn. 2012)

Treatise:
- A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 114 (2012)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2023/op23-03.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
February 15, 2023
Opinion No. 23-003

Dismissal of Director of Schools under Tenn. Code Ann. § 49-2-301(c)

Question 1

Assuming that a director of schools has been duly found to be in violation of subsection (c) of Tenn. Code Ann. § 49-2-301, does Tenn. Code Ann. § 49-2-301(c) require that the director be dismissed from the director's position?

Opinion 1

Yes, the word "shall" in subsection (c) of Tenn. Code Ann. § 49-2-301 should be regarded as mandatory so that if a director of schools has been duly found to be in violation of subsection (c) the school board has no discretion as to the consequences of the violation and is required to dismiss that director.

ANALYSIS

Each local board of education is authorized to employ a director of schools. Tenn. Code Ann. § 49-2-301(a). It was the express intention of the General Assembly in enacting the current version of § 49-2-301 "to convert the former elected office of superintendent of public instruction to an administrative position filled by the applicable local board of education." Id. § 49-2-301(a). The qualifications for and duties of a director of schools are specified in Tenn. Code Ann. § 49-2-301. In particular, the local board of education has "the duty . . . to assign to its director of schools" the responsibility of ensuring "that the laws relating to the schools and rules of the state and the local board of education are faithfully executed . . . ." Tenn. Code Ann. § 49-2-301(b)(1)(A). And the director is to give his or her "full time and attention to the duties of the director's position." Id. § 49-2-301(b)(1)(V).

Under Tenn. Code Ann. § 49-2-301(c)

[i]t is a Class C misdemeanor for any director to take any other contract under the board of education or to perform any other service for additional compensation, or for any director to act as principal or teacher in any school or to become the owner of a school warrant other than that allowed for the director's service as director. A director who violates this subsection (c) shall also be dismissed from the director's position. (Emphasis added).

In general, use of the word "shall" in a statute is read to mean that the statutory provision is mandatory, not discretionary. Stubbs v. State, 393 S.W.2d 150, 154 (Tenn. 1965) ("when the word 'shall' is used in constitutions or statutes it is ordinarily construed as being mandatory and not discretionary"); see also Emory v. Memphis City Sch. Bd. of Educ., 514 S.W.3d 129, 144 n.11 (Tenn. 2017); Home Builders Ass'n of Middle Tennessee v. Williamson Cnty., 304 S.W.3d 812, 819 (Tenn. 2010) (citing Gray v. Cullom Mach., Tool & Die, Inc., 152 S.W.3d 439, 446 (Tenn. 2004); Sanford Realty Co. v. City of Knoxville, 110 S.W.2d 325, 327 (Tenn. 1937); and Gabel v. Lerma, 812 S.W.2d 580, 582 (Tenn. Ct. App. 1990) (citing Stubbs)). Indeed, "when the word shall can reasonably read as mandatory, it ought to be so read." A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 114 (2012).

To determine whether, in any particular instance, the word "shall" in a statute is mandatory, a court will consider "the entire statute, including its nature and purpose, and the consequences that would result from a construction one way or the other." Presley v. Bennett, 860 S.W.2d 857, 860 (Tenn. 1993). Thus, "a provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory, and when a fair interpretation of a statute . . . shows that the legislature intended a compliance with such provision to be essential to the validity of the act . . . , the statute must be regarded as mandatory." Holdredge v. City of Cleveland, 402 S.W.2d 709, 713 (Tenn. 1966); see also Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 309 (Tenn. 2012).

Based on these principles of statutory construction, the word "shall" in subsection (c) of Tenn. Code Ann. § 49-2-301 should be regarded as mandatory so that if a director of schools has been duly found to be in violation of subsection (c) the school board has no discretion as to the consequences of the violation and is required to dismiss that director. The context of the statute as a whole makes it evident that the legislature intended compliance with subsection (c) to be essential to the purpose of the legislation. It was important to the General Assembly that the school board employ its director of schools so that the board can exercise control to ensure that its director complies with all state laws and devotes his or her entire attention to the job. Subsection (c) proscribes certain activity—for example, engaging in other work for additional compensation—that interferes with or impedes full-time commitment to the duties required of the director. If a director is duly found to have engaged in those proscribed activities, not only will the director have failed to comply with state law but will also have failed to devote full-time efforts to the job of director, both of which are essential to the purpose of the legislation. Construing "shall" as mandatory in this context is supported by the inclusion of "also" immediately following "shall"; "also" contemplates dismissal in addition to whatever other sanctions are imposed for commission of the Class C misdemeanor, which suggests that the board does not have discretion to take those other sanctions into consideration.

JONATHAN SKRMETTI
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

Requested by:
The Honorable Jody Barrett
State Representative
425 Rep. John Lewis Way N.
Suite 596 Cordell Hull Building
Nashville, Tennessee 37243