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2023 Op. Tenn. Att'y Gen. 1 (2023)

handle is hein.sag/sagtn0184 and id is 1 raw text is: 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 Ouestion 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

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