Request By:
Mr. Donald H. Hensley
Box 282
Wallins Creek, Kentucky 40873
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter concerning a matter which occurred at the last school board meeting. The subject of the bids for walk-in freezers for five schools in Harlan County came up for a vote and the low bids were submitted by a person employed by the school board as a salaried employe. It is your opinion that it would be a conflict of interest to let a salaried employe of the Harlan County School District bid on the walk-in freezers. The school board postponed its decision on the bids for the freezers and you seek the advice of this office regarding the matter.
We first direct your attention to KRS 156.480 which provides as follows:
"If any employe of the department of education or the superintendent, assistant superintendent, business manager, purchasing agent, or employe of any county or independent school district shall have any pecuniary interest either directly or indirectly in an amount exceeding twenty-five dollars ($25.00) per year either at the time of or after his appointment to office, in supplying any goods, services, property, merchandise or services, except personal services which are in addition to those required by contract for employment, of any nature whatsoever for which school funds are expended, or if any such person receives directly or indirectly any gift, reward or promise of reward for his influence in recommending or procuring the use of any goods, services, property or merchandise of any kind whatsoever for which school funds are expended, he shall upon conviction be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500) and his office or appointment shall without further action be vacant." (Emphasis supplied.)
As you can see from the emphasized portion of the above quoted statute, it is directed at the employe of the county school district who has a direct or indirect pecuniary interest in a contract exceeding $25.00 per year involving the expenditure of school funds for the supplying of any goods, services, property, merchandise or services of any nature whatsoever. The statute, however, does not delineate the duties of the board of education or place any responsibility on the board to prevent an employe of the county school district from committing the proscribed acts. See OAG 73-671, copy enclosed. Thus, the county school board could purchase the items from the school district employe if he is, in fact, the low bidder.
It appears, however, that the employe of the county school district would be violating the provisions of KRS 156.480 if he enters into a contract with the school board under the factual situation you have presented. His bid does not come within the statutory exception of "personal services which are in addition to those required by contract for employment." The employe may be subject to a quo warranto proceeding against him to oust him from his employment if he enters into the contract with the school board and a complaint is subsequently made to the Attorney General. The school board does not have the authority to oust an employe of the school district on the grounds of a conflict of interest as the Court of Appeals (now the Supreme Court) has held in Arnett v. DeWeese, Ky., 304 S.W.2d 784 (1957), that only a court can determine whether a person has forfeited his employment by violating this statute. Again see OAG 73-671.
In conclusion, it would be our opinion that the county school board is not legally precluded from accepting the low bid of and contracting with the employe of the school district. If the school district employe contracts with the school board under the factual situation you have presented, however, the employe has probably violated the provisions of KRS 156.480; but whether he has forfeited his office by violating this statute is a matter for the courts to determine.