Request By:
Honorable David L. Baker
University Counsel
University of Louisville
Louisville, Kentucky 40208
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the attorney for the University of Louisville you have asked the Office of the Attorney General to advise you relative to a matter involving the membership of the University of Louisville Board of Trustees. You have pointed out to us that the composition of the Board of Trustees is to include a "member of the teaching faculty of the University of Louisville who shall be the chief executive of the ranking unit of faculty government." You further stated that on September 7, 1977, the faculty senate of the University of Louisville elected as its chief executive officer a distinguished faculty member with twenty-eight years of service to the University who is a resident alien (Canadian citizenship) .
The issue which has evolved from the above facts is whether a resident alien may serve on the Board of Trustees of the University of Louisville. You noted that in a 1970 opinion from this office, OAG 70-343, we concluded in regard to a non-voting student member of the Board of Regents of Eastern Kentucky University that "in the absence of any statutory provisions to the contrary, an alien, even a resident alien, cannot hold public office. " You also noted that since 1970, the United States Supreme Court has on several occasions considered the status of aliens' rights under the Equal Protection Clause of the United States Constitution.
Under the circumstances described, you have presented for our consideration the following three specific questions:
1. May a resident alien legally serve as the faculty trustee called for in KRS 164.820(1)?
2. In the event that the answer to question number one, above, is in the affirmative, should the requirement of KRS 12.070 be waived or the Constitutional oath be modified in any way (or, alternatively, be waived also)?
3. In the event that the answer to question number one is in the negative, would disqualification affect the faculty member's concomitant status as chief executive officer of the ranking unit of faculty government or could a special election be held for the purpose of filling the faculty seat on the Board of Trustees in the same manner as is set out in the statute for filling the student member seat when the president of the student body is not a full time student who maintains permanent residency in Kentucky?
KRS 164.820(1) sets forth the composition of the Board of Trustees of the University of Louisville as follows:
"(1) The government of the University of Louisville is vested in a board of trustees consisting of ten competent citizens of Kentucky appointed by the governor; one non-voting member of the teaching faculty of the University of Louisville who shall be the chief executive of the ranking unit of faculty government; and a student member who shall be the president of the student body; however, if the student body president is not a full-time student who maintains permanent residency in the commonwealth of Kentucky, a special election shall be held to select a full-time student who does maintain permanent residency in this commonwealth as the student member. The faculty member and student body member shall cease to be eligible for membership on the board of trustees upon termination of their respective relationships with the university, and vacancies occurring by reason of such termination shall be filled for the remainder of the respective terms in the same manner. The ten citizen members of the board shall annually elect one of their number to serve as chairman of the board."
From this subsection we have the express requirement that the chief executive of the unit of faculty government shall be one of the members of the Board of Trustees. Although the statute indicates this faculty member trustee does not have the right to vote, the opposite is in fact the law by the provisions of KRS 164.289.
The other Board of Trustees members are denominated in KRS 164.820(1) as "ten competent citizens of Kentucky appointed by the governor" and "a student member who maintains permanent residency in the Commonwealth of Kentucky." It is the character of this body, and of the individuals to serve as this body, that must now be analyzed.
One of the first aspects to be considered is whether a position on the Board of Trustees is a public office and one holding such office a public officer. In OAG 70-343, supra, we concluded that "the position of student member of the Board of Regents is a public office, even though this is a non-voting position." The argument fostered in the opinion in support of that position cannot seriously be challenged. In 63 Am.Jur.2d Public Officers and Employees, § 1, the following is said of a public officer:
"A public officer is such an officer as is required by law to be elected or appointed, who has a designation or title given him by law and who exercises functions concerning the public, assigned to him by law."
While you have brought to our attention that KRS 164.150 relating to the University of Kentucky which provides that a member of the board of trustees of that institution shall not be held to be a public officer by membership on the board, we are unconvinced that this legislative indulgence in legal fiction is particularly relevant to the issue at hand. Moreover, KRS 164.320(3), dealing with the board of regents at the other state-supported universities, provides that membership on the board of regents shall not be incompatible with any other state office. Looking at KRS 164.150 and 164.320(3) together, it would seem that their purpose is not to obliterate board of trustees and regents members from the status of public officer per se but to statutorily prevent problems relating to allegations of incompatibility of offices. Furthermore, and irrespective of this surmise, there is no such statutory provision declaring members of the University of Louisville Board of Trustees not to be public officers and we are unwilling to infer and adopt by reference the provisions of KRS 164.150 and 164.320(3) for this purpose. Thus, it is our opinion, particularly for considering the issue presented to us herein, that the position of faculty member of the University of Louisville Board of Trustees is a public office.
A second aspect to be considered is the specific reference in KRS 164.820 to "citizen members" of the Board of Trustees. Clearly these "citizen members" are the ten individuals to be appointed by the governor. An argument could be made that the requirement of citizenship as a qualification to be on the Board of Trustees exists only with respect to those to be appointed by the governor and not to the faculty or student member because the word "citizen" is not used in the statute to refer to these latter two positions. We believe, however, that such an argument is without any merit. We believe the term "citizen member" in KRS 164.820 is used as a matter of convenience for purposes of reference rather than to delineate any differentiation in basic qualifications to hold office. Thus, it is our opinion that the faculty member on the Board of Trustees must also be a citizen.
A factor which strongly supports our conclusion that the faculty member on the Board of Trustees of the University of Louisville must be a citizen is the requirement found in KRS 12.070. In pertinent part this section reads:
"Before entering upon the duties of their office, all members of administrative boards and commissions shall take the oath of office prescribed by Section 228 of the Constitution." (Emphasis supplied.)
Section 228 of the Kentucky Constitution reads as follows:
"Members of the general assembly and all officers, before they enter upon the execution of the duties of their respective offices, and all members of the bar, before they enter upon the practice of their profession, shall take the following oath or affirmation: I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of the Commonwealth, and be faithful and true to the Commonwealth of Kentucky as long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of . . . according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this state, have not fought a duel with deadly weapons within this state, nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God."
Note that this state constitutional oath is to be taken by all officers before they commence their duties. This constitutional oath specifically requires one taking the oath to be a Kentucky citizen. We believe it is clear that an officer of the Commonwealth must be a citizen and that all members of administrative boards and commissions are to be citizens. It is our opinion, then, again, that the faculty member of the Board of Trustees must be a citizen of Kentucky. In order to be a citizen of a state one must first be a citizen of the United States. United States Constitution, Fourteenth Amendment, and see
Factor v. Pennington Press, Inc., 230 F.Supp. 906, 909 (N.D. Ill. 1963).
We are not unmindful of the relatively recent cases of the United States Supreme Court regarding the status of aliens' rights. The Court in 1973 decided
Sugarman v. Dougall, 413 U.S. 634, and In re Griffiths, 413 U.S. 717. In 1976 the Court decided
Hampton v. Mow Sun Wong, 426 U.S. 88. We do not, however, find these cases in any way decisive of the present questions before us.
In Hampton, supra, Mr. Justice Stevens in delivering the opinion of the Court made reference to
Sugarman v. Dougall and In re Griffiths, supra, as "two cases that recognize the importance of protecting the employment opportunities of aliens. " 426 U.S. at 95. In Sugarman v. Dougall, the Court held that a New York civil service law which provided that only United States citizens could hold permanent positions in the competitive class of the State's civil service, violated the Equal Protection Clause of the Fourteenth Amendment. The Court's holding in In re Griffiths was that Connecticut's exclusion of aliens from the practice of law was also unconstitutional under the Equal protection Clause. In Hampton, the Court ruled as unconstitutional a regulation barring noncitizens from employment in the federal civil service.
We do not begin to imply that the above referred to cases are to be brushed aside simply because they dealt with employment opportunities of aliens. Nevertheless, it has to be obvious that holding a position of a state university board of trustee is not in any manner a question of employment but rather a matter of holding a position of public trust and responsibility.
This critical distinction and the difference the distinction makes is in fact supported by these Supreme Court cases. Generally, but in no way intending to over simplify the decisions of the Court, we believe the Court's holdings further supported the proposition that aliens are in some respects on a par equal with citizens and in other respects are not given legal parity with citizens. For example, in Sugarman v. Dougall, the Court recognized that a state may constitutionally require citizenship as a qualification for office. 413 U.S. at 647. The Court continued, saying a state has the power to prescribe qualifications for its officers and the manner in which they are to be chosen and that "[s]uch power inheres in the State by virtue of its obligation, already noted above, 'to preserve the basic conception of a political community.'
Dunn v. Blumstein, 405 US, at 344, 31 L Ed 2d 274. And this power and responsibility of the State applies, not only to the qualifications of voters, but also to persons helding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government. There, as Judge Lumbard phrased it in his separate concurrence, is 'where citizenship bears some rational relationship to the specific demands of the particular position.' 339 F.Supp. at 911."
The importance of a state's power to prescribe qualifications for its officers also played a significant part in the Court's consideration in In re Griffiths, supra. The Court there rejected the argument that an attorney was an "office holder" such as to come within the general argument that "'participation in the government structure as voters and office holders' is inescapably an aspect of citizenship. " 413 U.S. at 728, and see footnote 21.
In view of the above, we reiterate the conclusion reached in OAG 70-343, noted supra, and extend that conclusion here to apply to the faculty member of the University of Louisville Board of Trustees. Therefore, in response to your first question, we conclude that a resident alien cannot legally serve as the faculty member trustee called for in KRS 164.820(1).
Our conclusion relative to your first question precludes any need for consideration of your second question. As for your third question, we believe it is incumbent upon the university faculty to elect as its chief executive officer an individual who can fulfill all of the obligations attached to such position. By statute, the chief executive officer is to also be the faculty member on the Board of Trustees. However, as a matter of law, the individual the faculty has presently chosen cannot meet the qualification of citizenship attached to the position of trustee member. The faculty should select a faculty member as chief executive officer who is qualified to perform the statutory obligations attendant to that position, that is, to be a board trustee.