Ethically Speaking: Can You Work Professionally for Others While Employed by Your Board of Education?

Mark Boardman, Attorney, Boardman, Carr, Petelos, Watkins & Ogle P.C.

The Alabama Ethics Commission issued an opinion 1 in February allowing two government officials to participate in a television program, for profit, using their official government titles. This ruling means that you, as an educator, can also engage in business pursuits, using your title (superintendent, principal, assistant principal, etc.). Doing so would not violate The Ethics Act, but I recommend that you not identify your school district or school when using your title.

In the last issue of CLAS Leader, we examined how the Ethics Commission now allows retired educators to return to work, without a contract, with their board of education after retirement. This issue examines how you can obtain additional income while still employed by your school district.

The February 2022 Opinion was issued to Montgomery Municipal Court Judge Samarria Munnerlyn Dunson and Montgomery County Circuit Judge Lloria Munnerlyn James, who were contacted by MGM television to consider a non-legal television show in which the two judges (who are sisters) would assist actors who are playing the roles of teenagers for a television show to be called “Teen Court.” The television show proposed the sisters portraying judges hearing scenarios acted out by paid actors, whereupon the judges would make suggestions as to how to resolve the matter before them. The Ethics Commission allowed this because it determined that this television opportunity did not conflict with the judges’ public employment. The Ethics Commission noted that the judges would not use public property, time, labor, or equipment. The Ethics Commission further noted the episodes would be filmed only when the judges were on annual leave or on weekends or holidays. The Ethics Commission agreed that whatever the judges did in the television show would not influence their judicial decisions in Montgomery.

The Alabama Ethics Act prohibits a government employee from using their office for personal gain for themselves, a family member, or a business with which they are associated. In this situation, the Ethics Commission determined that when the sisters would appear as judges on the show and use their title as judges, doing so would not constitute a use of their position for personal gain. Of course, the show could not be filmed on government property or use anything from the government, including assistance from other government employees. The judges also are not allowed to solicit or receive anything of value for the purpose of corruptly influencing their official action, or solicit or receive anything from a lobbyist or those related to the lobbyist. The judges also could not use or disclose any confidential information obtained during their government employment.

The Alabama Ethics Commission issued a somewhat similar opinion last August, 2 which allowed a member of the Alabama A&M University Board of Trustees to organize an HBCU football game to be held in Mobile where Alabama A&M might be a participant. The Alabama Ethics Commission in that Opinion, as well as the Opinion to the two sister judges, noted that Alabama Code § 36- 25-2(b) stated:

It is also essential to the proper operation of government that those best qualified be encouraged to serve in government. Accordingly, legal safeguards against conflicts of interest shall be so designed as not to unnecessarily or unreasonably impede the service of those men and women who are elected or appointed to do so. An essential principle underlying the staffing of our governmental structure is that its public officials and public employees should not be denied the opportunity, available to all other citizens, to acquire and retain private economic and other interests, except where conflicts with the responsibility of public officials and public employees to the public cannot be avoided. 3

Applying these two opinions to you, you can be hired to tutor a student, evaluate a school (including accreditation), or offer services to another educational entity (whether to another public school system or to a private school), as long as you follow the same continuously appear in the research concerning burnout. restrictions the two sister judges followed. In other words, a company, a person, or even another school district may hire you because of your expertise as an educator and you may be paid to use your expertise. Thus, you as an administrator at a school could be recognized by your official title (but not your actual school or school district). As long as the services provided do not relate to any student or to your current school system, you could tutor, work on accreditation committees, write articles for profit, etc. As part of the “marketing” those who pay you could say that these services were being provided by you, listing your title, but not your school district or school.

But be careful: Alabama law prohibits the use of confidential information, even if the information is later made public. For example, in an Ethics Opinion issued in 2009 4 , a judge learned confidential information while presiding over litigation that went to trial and resulted in a $30 million verdict for defamation. The litigation also questioned the NCAA’s regulation of college football. The judge who presided over that case wrote a book, but the Ethics Commission told him he could not include in the book information that he had learned confidentially as the judge in the case, even if the information was later made public. In other words, as long as he learned the information when it was confidential, he could not reveal it, even though it was public information after the litigation ended. He therefore could not include that information in his book.

Applying the 2009 opinion to you, you are not able to use private student information when conducting your personal business. Thus, tutoring for pay a student at your school, where you already know confidential information concerning that student, appears to be a violation of Alabama law. (It may also be a violation of FERPA.) But the biggest problem with tutoring one of your school district’s students is the likelihood of violating the Ethics Act by using your office for personal gain. For example, because the student (or parent) has hired you, other educators in your school district may give (or possibly you may give) that student preferential treatment.

The bottom line is that you have acquired expertise, which is the reason you are an administrator and a member of CLAS. You can use your expertise for personal gain, as long as it does not corruptly influence or alter your school district’s actions or affect any of its students.