Request By:
Mr. Ralph W. Nevels
Superintendent
McCreary County Schools
Whitley City, Kentucky 42653
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
You have asked the Office of the Attorney General to consider the legality of the McCreary County Board of Education making payment of attorney fees and court costs from education tax dollars as a result of litigation concerning your contract with this body as superintendent of schools. As background to this matter, you informed us that you had been appointed and given a contract for the position of superintendent to commence on July 1, 1976, and ending June 30, 1980. However, in March of 1976, a majority of the board took action to rescind your contract and subsequently appointed and gave a contract to another individual to be superintendent of schools. A lawsuit resulted with you and the two minority members of the board of education as plaintiffs and the three majority members of the board, along with the individual to whom they had last given a contract for the superintendent position, as defendants. As stated in your letter, the purpose of this lawsuit was to have the circuit court determine whether you or the other individual held a valid contract to serve as the superintendent of schools.
You were successful in the lawsuit and the Kentucky Court of Appeals affirmed your right to the position of superintendent in Board of Education of McCreary County v. Nevels, Ky., App. 551 S.W.2d 15 (March 11, 1977). The Kentucky Supreme Court denied a motion for discretionary review on June 8, 1977. In the circuit court judgment, concerning this litigation in that court, the judge provided in his decision that the defendants were to pay the court costs. Your specific question as regards this matter is whether payment of the court costs and the attorney fees for representing the board of education (the defendant) in this action constitutes a legal expenditure of board of education funds.
As was extensively discussed in OAG 77-580, copy attached, each board of education as a body politic and corporate may sue and be sued, make contracts and do those things required to accomplish the purposes for which it is created. See KRS 160.160; 160.290. The lawsuit in question involves the making of a contract for the position of superintendent. KRS 160.350. Under the provision of KRS 160.270(1), a "majority of the board shall constitute a quorum for the transaction of business." Thus, it took the affirmative vote of three school board members to award you a contract, to attempt to abrogate that contract, and to then appoint another as superintendent and to award a contract for such services. We believe at all times in this regard the McCreary County Board of Education, even though divided in vote, was acting as a body politic and corporate in a matter respecting school affairs and purposes. Unlike the legal proceedings discussed in OAG 77-580, supra, the legal action under consideration herein did not involve any school members' personal interest. The three majority members were not acting individually but as the school board for the benefit of the school system. The case law is clear in a situation as presented here, that a county board of education, as a body politic and corporate, is a necessary party defendant to a suit respecting an alleged unlawful discharge of an individual as superintendent and that it is improper to sue individually three of five board members. See Johnson v. King, Ky., 349 S.W.2d 845 (1961).
Therefore, in the present case, the board was sued concerning what we believe to be a matter respecting school affairs. Upon being sued, it had to defend and we are of the opinion the McCreary Board of Education clearly had the implied authority to employ counsel to represent the board for the protection of the board's corporate actions and decisions. It is our opinion the case of Hogan v. Glasscock, Ky., 324 S.W.2d 815 (1959), is authority for the conclusion we reach; that the McCreary County Board of Education had implied power to expend school funds for attorney fees and court costs incurred in defending the board's actions in the case herein-above discussed.