Request By:
Mr. Fred Johnson, Secretary
State Committee for School Audits
Department of Education
Capital Plaza Tower
Frankfort, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As Secretary for the State Committee for School District Audits you have been directed by the Committee to seek an opinion from the Office of the Attorney General regarding the legality of expending public common school money by the McCreary County Board of Education in connection with a court action contesting the election of certain board members in 1972. You reported in your letter that certain taxpayers of McCreary County in 1975 requested the Committee to direct a full audit of the books of the McCreary County School System. An audit resulted and from the auditor's report, relative to McCreary Circuit Court Civil Action # 2409, styled Howard Kidd, et al v. Thomas Worley, et al, it appears that legal services, court and stenographic costs expended by the McCreary County Board of Education on Civil Action # 2409 were as follows: Lucille SilerStenographic ServiceCheck No. 1251$ 496.50Rose and MartinLegal ServicesCheck No. 18232,000.00Clarence CooperCourt CostCheck No. 217028.00Rose and MartinLegal ServicesCheck No. 24521,250.00Total$3,774.50
It is our opinion, in that the legal action in question was brought against individual board members and not the board of education, the payment by the McCreary County Board of Education of legal fees, court and stenographic costs was an illegal expenditure of public common school funds.
In support of our conclusion, we believe it important to consider the nature and legal status of a public common school board of education. Each board of education is a body politic and corporate. KRS 160.160. This statute further provides that each board of education "may sue and be sued," "make contracts" and "do all things necessary to accomplish the purposes for which it is created." Both KRS 160.160 and 160.290 require each board of education to manage and control the public common schools in the district.
There is, however, nothing in either KRS 160.160, 160.290 or elsewhere giving a local board of education the authority to hire an attorney.
Nevertheless, the Kentucky Court of Appeals, in Hogan v. Glassock, Ky., 324 S.W.2d 815, 817 (1959), stated as follows on this matter:
"Although there is no specific statutory authority for school boards to employ an attorney, they have the implied power to do so when such employment is necessary for their protection and the accomplishment of the purposes for which they are created. The Legislature has authorized local boards of education to control and manage the affairs of the school district. The terms of KRS 160.160 provide that each school district shall be under the management and control of a board of education consisting of five members, to be known as the 'Board of Education of , Kentucky'; that each board shall be a body corporate with perpetual succession; that it may sue and be sued; make contracts; purchase, receive, hold and sell property; issue bonds for the construction of improvements, and 'do all things necessary to accomplish the purposes for which it is created.'"
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"We further point out that KRS 160.290 expressly provides that school boards shall manage and control the property, funds and affairs of the school district, and that KRS 160.160 confers upon the board the general power to 'do all things necessary to accomplish the purposes for which it is created.'"
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"We might now add that KRS 160.290 further expressly authorizes a county board of education to use its funds 'to promote public education in such ways as it deems necessary and proper.'"
Thus, since a local board of education may legally employ an attorney, the question then becomes for what purposes may a board employ legal counsel and expend public education tax dollars to pay for such legal fees and related legal costs.
The case law is legend in Kentucky that a local board of education, under Kentucky Constitution mandate, may only expend public education tax money for an educational purpose. Kentucky Constitution §§ 180, 184 and 186. In
Board of Education v. Spencer County, Etc., Ky., 230 S.W.2d 81, 83 (1950), the Kentucky Court of Appeals stated concerning the expenditure of public school money:
"The test is, what constitutes an educational purpose within the meaning of Section 184 of the Constitution, rather than whether any activity might be beneficial to education."
In recognition of this constraint the Court in Hogan, supra, ruled that the board of education had employed an attorney to represent it in cases which involved an attack on the board's method of "promoting public education" and that "defense of those cases was clearly 'necessary to accomplish the purposes' for which the board was created and that the appellees (the board members) were fully authorized by implication to make the expenditures (legal fees) sought to be recovered." 324 S.W.2d at 817.
In view of the above, concerning the present situation, before the McCreary Board of Education could make the expenditures of school money for legal services and related costs, the legal action must have been for a proper educational purpose. It is our belief that it cannot be said that a legal action regarding the election and right to hold office of certain school board members constitutes a proper educational purpose. The litigation in question herein involved members of a school board in their individual capacities and it was strictly personal to them. The use of public common school money for payment of legal fees and costs for such a lawsuit was palpably an unconstitutional use of education tax dollars. We believe the payment of the attorney fees and court costs in question with school money was an unlawful gratuity to the board members involved in the contested election litigation.
It should be noted that the Court in Hogan, supra, at page 817, commented that the legal expenses paid by the local board of education in that case did not involve "any attempt to charge appellees (board members) with individual financial responsibility, malfeasance in office, or to question their right to office. " (Emphasis supplied.) We believe the Kentucky Court of Appeals with this language was indicating several types of litigation which would not involve an educational purpose and for which a board of education would be prohibited from expending school money in regard thereto. For sure, the Supreme Court of South Carolina so concluded, as to a contest of office action, in
Palsay v. Brooks, 17 S.E.2d 865 (1941). Recognizing the value of the South Carolina court's opinion to be at best persuasive authority, we still believe it to be a very germane analysis of a civil action situation quite comparable to the one herein under question. The South Carolina Court in Palsay stated at page 868, as follows:
"Upon a careful review of the evidence submitted in this case we cannot escape the conclusion that the various legal steps, contested hearings and litigation in which the petitioner appeared, did not involve or in anywise directly concern the corporate rights and functions of Saxon School District, but were solely for the benefit of the individuals, Easler, Holmes and Trammell, composing the Board of Trustees, in their effort to succeed themselves in the office of school trustee.
A school district in its corporate capacity has no interest in the success of any individual or group of candidates who may run for the office of school trustee. There is no authority in this State, statutory or otherwise, which empowers school trustees to issue warrants covering fees of counsel for candidates engaged in a legal contest for the office of school trustee. It is not the duty of the public to pay for such services; such is not a school district purpose, and the taxpayers of a school district cannot legally be called upon to meet the expenses of such contests growing out of school district elections. The case would be no whit different in principle if the trustees had issued a warrant for the payment of counsel fees of the three defeated candidates who ran in the same election for the office of school trustee. We are, therefore, constrained to hold that Messrs. Easler, Holmes and Trammell were acting in their own individual behalf when they undertook to engage counsel to represent them and take part in all of the litigation to which we have referred. The warrant issued by them and drawn on Saxon School District was clearly ultra vires and unauthorized by law."
In summary, then, it is the opinion of this office that the McCreary County Board of Education has improperly and unconstitutionally paid legal fees and court-related costs in connection with Civil Action # 2409, McCreary Circuit Court, involving the contesting of the election of certain board members in 1972.