Q: A couple of board members have expressed interest in performing grounds maintenance (general mowing, edging and leaf blowing) at our district campuses during June and July in an effort to reduce summer costs. They would like to perform this work in a purely volunteer capacity on a rotating schedule and using their own equipment. Is this allowable?
A: Possibly, but it is not recommended. While the work will be unpaid and arguably temporary and intermittent, it is not advisable for board members to serve in any capacity that is routinely performed by a compensated district employee, on a regular basis, or for any type of compensation.
A 2001 Attorney General opinion discussed the various factors that are considered when a board member wishes to serve in a volunteer capacity for his or her school district. The Attorney General analyzed the issue under the doctrine of “incompatibility,” which prohibits a person from holding two simultaneous positions “where one position might impose its policies on the other or subject it to control in some way.” Tex. Att’y Gen. Op. JC-371 (2001). Of course, compensation is a major factor that will preclude a board member from being employed by the district. However, the AG has been clear that a lack of compensation alone does not make a board member’s volunteer services appropriate.
One important factor considered is the level of “supervision” that the Board and/or district administrators will have over the board member’s position. Here, maintenance work is typically performed by maintenance employees and supervised by the district’s operations manager. The same would be true here, as the trustee would be answerable to the administration (and use of one’s own equipment would not alter that, nor would it ever be recommended). While the AG has opined that volunteer work which is temporary/intermittent in nature may not violate the doctrine of incompatibility, the summer work that you describe likely does not fall within this category. In a 1998 opinion, the AG found that a university regent could volunteer his time as a part-time coach for the kickers on the football team “as needed.” Tex. Att’y Gen. L. Op. 98-036 (1998). The volunteer arrangement did not provide a conflict with his regent position because the regent received no payment or reimbursement and only contributed his coaching assistance sporadically and when necessary. Id. Moreover, the university did not have a regular coach for the kickers that the regent was replacing – this was simply an additional coaching service that was only needed a few times per season. In contrast, here, the lawn maintenance work to be performed by board members would be replacing work performed regularly by existing staff or contract laborers and pursuant to a regular summer schedule.
In sum, because the work described above will be performed by board members on a pre-set, rotating schedule, the position is unlikely to be considered “temporary and intermittent.” Tex. Att’y Gen. Op. JC-371. Further, a critical difference between this situation and the regent/coach case described above is that the school district regularly employs summer maintenance workers. Thus, the board members would be doing work that is routinely performed by a compensated employee. Therefore, this type of volunteer work would likely be considered “incompatible” with the office of school board trustee.