HB435 By Representative Black RFD Education Policy Rd 1 07-APR-15

SYNOPSIS: Under existing law, a person may be hired by a board of education where a relative within the fourth degree of affinity or consanguinity of that person is an existing employee, so long as the relative will not be the person's immediate supervisor and where the relative has no involvement in the hiring of that person.

This bill would prohibit a superintendant, a principal or other supervisor, or a member of a board of education from taking any direct or indirect role in the hiring of a relative.

This bill would prohibit a person from being hired by a board of education where a relative would be the person's immediate supervisor.

This bill would allow a person to be hired by a board of education where a relative would be in the chain of command of that person so long as the relative would not be the person's immediate supervisor.

This bill would prohibit a person from evaluating the performance of any subordinate who is a relative.

This bill would provide a cause of action for an applicant who is injured because of a violation of the provisions of this act.

This bill would define relative.

This bill would also provide penalties for violating this act.

A BILL TO BE ENTITLED AN ACT

Relating to school personnel; to amend Section 41-1-5, Code of Alabama 1975; to prohibit relatives from being involved in the hiring, supervision, or performance evaluation of a school employee; to define relative; to provide a cause of action for an applicant injured because of a violation of this act; and to provide penalties.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Section 41-1-5, Code of Alabama 1975, is amended to read as follows:

§41-1-5.

"(a) No officer or employee of the state or of any state department, board, bureau, committee, commission, institution, corporation, authority, or other agency of the state shall appoint, or enter a personal service contract with, any person related to him or her within the fourth degree of affinity or consanguinity to any job, position, or office of profit with the state or with any of its agencies.

"(b) Any person within the fourth degree of affinity or consanguinity of the agency head or appointing authority, the appointing authority's designee, deputy director, assistant director, or associate director shall be ineligible to serve in any capacity with the state under authority of such an appointment, and any appointment so attempted shall be void. The provisions of this section shall not prohibit the continued employment of any person who is employed as a public employee as of August 1, 2013, nor shall it be construed to hinder, alter, or in any way affect normal promotional advancements under the state Merit System for the employee.

"(c) Any person within the fourth degree of affinity or consanguinity of a public employee shall not be the immediate supervisor for or in the chain of command of, or participate in the hiring, evaluation, reassignment, promotion, or discipline of, the public employee within any state department, board, bureau, committee, commission, institution, corporation, authority, or other agency of the state.

"However, this subsection shall not apply to an employee of a city or county board of education that is currently employed or to a future employee hired into a non-supervisory position posted in accordance with Section 16-22-15, where his or her relative will not be the employee's immediate supervisor, and where the employee's relative made no recommendation, cast no vote, and otherwise had no involvement concerning the employee's hiring.

"(d) Whoever violates this section is guilty of a misdemeanor and shall be punished by a fine not to exceed $500.00 five hundred dollars ($500) or by imprisonment not to exceed one year, or both. A willful violation of this section shall subject the public employee and the person or persons within the fourth degree of affinity or consanguinity of the public employee to disciplinary action, up to and including separation from state service.

"(e) This section shall not apply to any city or county board of education."

Section 2. As used in Sections 3 to 5, inclusive, of this act, the following terms have the following meanings:

(1) BOARD, BOARD OF EDUCATION, or EXECUTIVE OFFICER. These terms shall have the same meaning as provided in Section 16-22-15, Code of Alabama 1975.

(2) RELATIVE. The spouse, a dependant, an adult child or his or her spouse, a parent, a spouse's parent, or a sibling or his or her spouse, of another person.

Section 3. (a) Except as otherwise provided in this section, an executive officer may not recommend a relative for employment to his or her board.

(b) If a board publishes a vacancy announcement pursuant to Section 16-22-15, Code of Alabama 1975, and a relative of the executive officer submits an application or otherwise seeks the advertised position, the executive officer shall take no further direct or indirect action regarding the posted vacancy. The executive officer shall appoint an executive officer of another school system or another disinterested individual who is not employed by the board and does not report to the executive officer to conduct any interviews and to make a determination as to the applicant to be recommended to the board and to issue a report in writing. The executive officer shall then perform the ministerial task of presenting that written report, without comment, to the board for its consideration as to the executive officer's recommendation.

(c) If a board publishes a vacancy announcement pursuant to Section 16-22-15, Code of Alabama 1975, and a relative of a board member submits an application or otherwise seeks the advertised position, that member shall recuse himself or herself from any discussion, debate, consideration, or vote on the executive officer's recommendation regarding that vacancy.

(d) If a board publishes a vacancy announcement pursuant to Section 16-22-15, Code of Alabama 1975, and a relative of a principal or other supervisor who is charged with conducting interviews, vetting or recommending candidates, or otherwise taking part in the hiring process submits an application or otherwise seeks the advertised position, the principal or supervisor may not take any part in the hiring process, directly or indirectly, and any interviews, vetting, or recommendations shall be assigned by the executive officer to another administrator in the system who does not report to the disqualified principal or administrator.

(e) Following the effective date of this act, no person shall be eligible to apply for or be hired into a position for which his or her immediate supervisor would be a relative.

(f) A person may apply for and be hired into a position where a relative would be in the applicant's chain of command if hired but would not be the applicant's immediate supervisor, so long as the applicant's supervisor made no recommendation, cast no vote, and otherwise had no direct or indirect involvement concerning the employee's hiring.

(g) If a position is filled by a relative of an executive officer, board member, principal, or other supervisor, and a violation of this section occurs, any other applicant for the position shall have standing to bring a declaratory judgment action in the circuit court with jurisdiction over the board within 21 days of the board's action to fill the position. If the court finds that this section was violated, the court shall declare the action of the board in hiring the relative null and void, order the executive officer and board to advertise the position again in accordance with Section 16-22-15, Code of Alabama 1975, and declare the relative initially hired ineligible for employment in that position.

Section 4. (a) A person may not evaluate the performance of, have input into the compensation of, or otherwise set the terms and conditions of employment of a subordinate relative.

(b) If an executive officer receives a recommendation for a personnel action affecting his or her relative from the principal or other supervisor of that relative, the executive officer shall delegate a third party to take action or make a recommendation to the board as provided in subsection (b) of Section 3 of this act.

Section 5. A willful violation of any provision of Section 3 or 4 of this act may constitute grounds for reprimand or a failure to satisfy the standards of boardsmanship as provided in the School Board Governance Improvement Act, Section 16-1-41.1, Code of Alabama 1975.

Section 6. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Employment

Public Schools

Board of Education, City

Board of Education, County

Teachers

Code Amended