INFORMATIONAL LETTER NO 67

POLICY CODE: BCB

TO: Superintendents of Schools and School Board Chairs

FROM:  Commissioner

DATE: June 17, 1998

SUBJECT: Conflict of Interest - School Board Members

The Maine Department of Education has received a number of inquiries concerning the conflict of interest provisions contained in 20-A M.R.S.A.  1002. As you know, these provisions prohibit certain types of employment by school board members or their spouses within the school administrative unit.

Section 1002 reads in its entirety:

 The following provisions apply to members of a school board.

 1. Definition. "Full-time employee" means a person regularly employed on a weekly basis regardless of remuneration or the number of hours worked.

2. Employment by school administrative unit, school union, academy. A member of a school board or spouse of a member may not be employed as a full-time employee in a public school within the jurisdiction of the school board to which the member is elected or contract high school or academy located within a supervisory union in which the member is a representative on the union committee.

3. Appointment to civil office and other employment. A school board member may not, during the term for which the member serves on the board and for one year after the member ceases to serve on the board, be appointed to any civil office or profit or employment position, which has been created or the compensation of which has been increased by the action of the school board during the time the member serves on the board.

4. Employees serving on school boards in school unions. An employee or the spouse of an employee of a school administrative unit may not serve on the school board of another school administrative unit when the 2 school administrative units are members of the same school union and have the same superintendent of schools.

DISCUSSION

Are unpaid volunteers "employees" under the statute?

One of the most frequently asked questions about the conflict of interest statute is whether the definition of "full-time employee" encompasses volunteers who receive no pay whatsoever.

It has been the Department's long-held interpretation of the statute that such volunteers are included within the definition of the statute because section 1002(1) specifically states that full-time employee includes a person who works for a school regardless of remuneration.

Under the Department's interpretation, therefore, the term employee encompasses salaried and hourly employees, individuals who receive stipends (such as athletic coaches), and unpaid volunteers so long as they are regularly employed on a weekly basis.

Recently, the Education Committee of the Legislature reviewed proposed legislation (L.D. No. 1416, An Act Concerning Eligibility for Service on a School Board ) which would have exempted unpaid volunteers from the conflict of interest statute. Several committee members, however, stated their agreement with the Department's interpretation and expressed concerns about allowing board members to be volunteers for a school unit, including the concern that undue influence might be exerted on superintendents or other staff by such board members/volunteers. The Committee voted the bill ought-not-to-pass and the bill was not enacted into law.

What constitutes regular weekly employment?

A question recently raised is how the Department interprets the words regularly and weekly in the phrase regularly employed on a weekly basis. Specifically, how many days and weeks must a person work to be regularly employed on a weekly basis ?

In the past the Department has given its opinion that coaching positions lasting several months constitute regular weekly employment under the statute, but it has never defined the minimum number of weeks in succession which are needed to comprise regular employment.

The most applicable dictionary definition of the word regular is consistent or habitual in action . . . recurring at set times or functioning in a normal way . . . Webster's New World Dictionary, 2nd College Edition (1980). The word weekly is defined as done, happening, appearing, payable, etc. once a week, or every week . . . of a week, or of each week. Id.

Based on the plain meaning of the statutory language, the Department of Education interprets the term regular weekly employment as describing a pattern of employment that occurs during two consecutive weeks and would include part-time employment. For example, a person working as little as one-half day a week for two weeks would be covered by the conflict statute. As described below, however, other employment that lasts for less than two weeks may also be unlawful under the State's common law.

May school board members or spouses be employed as substitute teachers if they are not employed on a regular weekly basis?

Recently, the Department has been asked whether school board members or their spouses may work as substitute teachers at any time, even if they only work intermittently and not on a regular weekly basis.

As described above, the statute prohibits employment, occurring during any two consecutive weeks, including substitute teaching, of board members or their spouses if the employment is for two weeks or more, no matter the hours worked.

School boards and superintendents, however, are cautioned that the State's Attorney General has already determined that any substitute teaching by a board member, even on an intermittent basis, violates common law principles of conflict of interest, and is, therefore, prohibited. Opinion of the Attorney General, March 5, 1974.

Under the common law, the Maine Supreme Judicial Court has stated that a person holding a public office becomes subject to the obligations of a trustee or fiduciary for the public. Opinion of the Justices, 330 A.2d 912, 916 (1975).

It is well established as a general rule that one acting in a fiduciary relation to others is required to exercise perfect fidelity to his trust, and the law, to prevent the neglect of such fidelity, and to guard against any temptation to serve his own interests to the prejudice of his principal's, disables him from making any contract with himself binding on his principal. The invalidity of a contract entered into in violation of this rule does not necessarily depend upon whether the fiduciary intended to obtain an advantage to himself, but rather upon whether it affords him the opportunity, and subjects him to the temptation, to obtain such advantage. The test is not whether harm to the public welfare has in fact resulted from the contract, but whether its tendency is that such harm will result.

Lesieur v. Inhab. of Rumford, 113 Me. 317, 320 (1915), quoted in Opinion of the Justices, 330 A.2d at 916 (1975). The Court in Lesieur further stated that it is

[T]he policy of the State that persons, whom the law has placed in positions where they may make, or be instrumental in making, or superintending the performance of, contracts in which others are interested, should not themselves be personally interested in such contracts.

Lesieur v. Inhab. of Rumford, 113 Me. at 322.

In addition to the common law, other statutes may limit the type of employment of, or the process for employing, board members or their spouses. See e.g., 30-A M.R.S.A.  2605 (certain contracts voidable where official has direct or indirect pecuniary interest); 17 M.R.S.A.  3104 ( No trustee . . . or other person holding a place of trust in any state office or public institution of the State shall be pecuniarily interested directly or indirectly in any contracts made on behalf of the State or of the institution in which he holds such a place of trust, and any contract made in violation hereof is void. . . . ).

In sum, the Department of Education believes that state statutes, the common law, or sound public policy, individually or in combination, prohibit the paid employment of board members or spouses regardless of the duration of the employment.

Finally, employment of school board members and/or spouses may be further prohibited by local school administrative unit charters, ordinances, or policies.