Can You Tutor Students of Your Own School, for Pay?

Ethically Speaking

Mark Boardman, Attorney, Boardman, Carr, Petelos, Watkins & Ogle, PC

The Alabama Ethics Act prohibits a public employee (which includes everyone employed by a board of education in Alabama) from using his or her government position for personal gain. Thus, a teacher should not tutor, for pay, the teacher’s own students. After all, the board of education pays that teacher to teach those students.

But what about a teacher tutoring children who are not his or her students at the time? Can a teacher tutor children who may, in the future, become that teacher’s students? May a teacher tutor children who were formerly his or her students?

According to a recent opinion of the Alabama Ethics Commission, under certain conditions, the teacher can tutor former or potential future students. In Ethics Commission Advisory Opinion 2023-01, the Alabama Ethics Commission ruled on a 3-1 vote that the Ethics Act does not prohibit a public employee from establishing a private company and providing services, even to someone or a company that interacts with the public employee in his public position. The Ethics Commission said that the employee must not use his government position to benefit himself or his consulting company and may not use confidential information, public equipment, public facilities, publicly owned materials, or government employee labor under his discretionary control to benefit himself or his private company. The Ethics Commission also ruled that the employee could not be paid as a consultant “for the purpose of corruptly influencing an official action.”

Ethics Opinion 2023-01 involved a county E-911 director. In that role, the public employee worked with emergency communications systems. Obviously, that employee possessed expertise in mobile communications. A vendor of E-911 requested his expertise (for pay) to solve a technical issue. The Ethics Commission allowed the public employee to do so, provided the above conditions were met.1

Applying Ethics Opinion 2023-01 to education, educators, like the E-911 director, are experts, but in teaching and pedagogy. The Ethics Act does not prohibit you from using your expertise, even if you profit from it. As a “big picture,” this analysis makes good sense and is good public policy because otherwise, a government expert would be unable to share with private individuals that expertise, thus discouraging an expert from entering into public service.

Nevertheless, be careful: Do not use FERPA-protected information in tutoring a child. Do not use tests from your school, as those are confidential, and the Ethics Commission prohibits using confidential information for personal gain. Do not promote yourself at your school or any other public school as a tutor. If you did so, you might violate the law, as you have an advantage over a private tutor because you advertised in a public school (unless others can, too). Do not tutor your own students until they are no longer your students. If you do not have the ability to decide who will be your students (because someone else assigns students to the classroom), then you can tutor prospective future students as long as those children are not currently assigned as your students.

In a small school, where the students advancing from grade to grade will most likely become your students, consult a lawyer or the Ethics Commission as to whether you can tutor those students.

Of course, any tutoring you do should not be at the school unless everyone, public or private, has the same opportunity to use the school. Instead, use the local library or some other public place to which all have access. Or use a private place. Tutoring, obviously, must be done on your own time, not the time you are expected to be working for your board of education.

If you are a “final decision maker” for the school or school district, it is possible that the Ethics Act prohibits you from dealing with some or all of those students. That requires a much more detailed analysis, far beyond what we can cover in this short article.

In conclusion, the Alabama Ethics Act allows teachers to tutor, but under conditions.

1 The opinion concluded: “The Ethics Act does not prohibit a public employee who is the E-911 Director of the Pike County Emergency Communications District from establishing a private consulting company and providing services to a company that has interacted with him in his public position to provide goods or services to member agencies and departments with the Pike County ECD provided he does not use his position to benefit himself or his consulting company and has not already used his position to create the opportunity for himself or his business.” Ethics Commission Opinion No. 2023-01, page 5, February 1, 2023.