Legal Brief
Board Member as Boss and Employee?
BY SARA G. BOUCEK/School Administrator, November 2021

AT LEAST ONCE A YEAR, the dreaded question comes into our law office: A school board member wants to know whether they can be employed in the posted position with the school district.

In dreaded, convoluted legal speak, the short answer: probably not. The long annoying legal answer: most likely not, except in specific situations where factual and legal thresholds and requirements have been reviewed, analyzed, applied and implemented.

Most states have laws that prohibit public/elected officials from having any direct financial interest that would conflict with their role as public/elected officials. In Illinois, two laws apply.

The first is in the Illinois School Code that states school board members shall not be financially interested, either directly or indirectly, in their name or in the name of another person in any contract, work or business for the school district or in any sales of purchases of the school district.

The second is in the Illinois Public Officer Prohibited Activities Act that states no public official shall be “financially interested directly in his own name or indirectly in the name of any other person, association, trust or corporation, in any contract or the performance of any work in the making or letting of which such officer may be called upon to act or vote.”

Violations of either law in Illinois are a Class 4 felony. On a strict reading given the criminal consequences, it seems simple enough, the short answer should be a resounding “no.”

Limited Options

To complicate an otherwise straightforward response, statutory exemptions exist for both laws that create a narrow pathway for board member employment. In Illinois, a board member/public official could be employed by a school district if (1) the conflict is disclosed prior to the board’s deliberation and vote; (2) the majority of the board votes with the affected board member abstaining; and (3) the pay for employment does not exceed $1,000 (or in specific aggregated situations $2,000).

Accordingly, if a board member would like to be considered for an administrative or teaching position, with pay exceeding $1,000, employment is not permitted unless the board member resigns from the public position.

Alternatively, the board member could apply to be a substitute teacher or bus driver on a short-term basis, assuming the pay does not exceed $1,000, the board knows the conflict prior to voting, the affected board member abstains and a majority of the board votes to hire. When that happens, your board member becomes both the superintendent’s employer and employee.

Another option, of course, is to resign from the board member role and apply for the position. In this case, you want to ensure all employment hiring processes be followed carefully to avoid adverse action by either the board member and/or other applicants.

At that point, the better question for the superintendent and school board is this: Should a board employ one of its board members? The short and long answer in my view is no, for two reasons. First, no good deed goes unpunished. Second, the political implications — notably, public criticism and perception of impropriety — as well as the personal, professional and political pressures and strife to the superintendent and staff far outweigh any benefit of employing a sitting board member.

A Risky Recipe

While there may be a legal path, consider that political problems become legal realities. The potential consequences most likely outweigh the benefit. Moreover, hiring a board member has the potential to create the appearance of impropriety and bias. Right now, with the significant number of issues created by the COVID-19 pandemic, this board-created issue ought to be avoided. No matter how one analyzes the situation, unless the district is in dire need (which may be true when looking for bus drivers, teachers in particular fields, nurses and substitute staff during the continuing public health crisis), allowing a board member to become both an employer and employee is a recipe for disaster. It can best be described as “too many cooks in the kitchen.”

If your district is considering this, check your state laws, consult with your favorite school attorney, proceed with caution and grab your oven mitt as the likelihood of getting burned is high.