Request By:
Ms. Gail S. Redwine
111 Mallard Lane
Winchester, Kentucky 40394
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter stating that after teaching elementary school for five years, you resigned, ran for a position on the school board and won. You desire to retain your membership in the Kentucky Education Association and the National Education Association while serving on the school board. You ask whether holding office as a school board member and, at the same time, being an associate member of the Kentucky Education Association and the National Education Association creates any actual or apparent conflict of interest.
KRS 61.080 provides in part that no person shall, at the same time, be a state officer, a deputy state officer or a member of the general assembly, and an officer of any county, city or other municipality, or an employe thereof. Furthermore, no person shall, at the same time, fill a county office and a municipal office and no person shall at the same time, fill two municipal offices, either in the same or different municipalities. See also Section 165 of the Kentucky Constitution.
Membership on the local school board constitutes a state office and the members thereof are state officers as held in a number of cases, two of which are
Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967) and
Jones v. Browning, 298 Ky. 467, 183 S.W.2d 38 (1944).
As we understand it, the Kentucky Education Association is a chartered member of the National Education Association. These organizations promote the advancement of education generally and the interests of teachers specifically since many members of the organizations are teachers. They are in no way associated or affiliated with the state government or the governments of any county, city or district. Thus, membership in the National Education Association and the Kentucky Education Association does not constitute a state, county or city office and the members thereof are not state, county or city officers.
Therefore, neither the statutes nor the state constitution prevent a person from being a school board member and, at the same time, a member of the National Education Association and the Kentucky Education Association.
One other point should be discussed and that involves the concept of common law incompatibility. In
Polley v. Fortenberry, 268 Ky. 869, 105 S.W.2d 143, 144-145 (1937), the Court said in part as follows:
". . . The two employments not being incompatible under the Constitution or statute, the case turns on whether the two offices or employments are incompatible under the common law. As said in
Barkley v. Stockdell, 252 Ky. 1, 66 S.W.2d 43, 44, 'Aside from any specific constitutional or statutory prohibitions, incompatibility depends on the character and relation of the offices and not on the matter of physical inability to discharge the duties of both of them. The question is whether one office is subordinated to the other, or the performance of one interferes with the performance of the duties of the other, or whether the functions of the two are inherently inconsistent or repugnant, or whether the occupancy of both offices is detrimental to the public interest' . . . ."
See also
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122, 126 (1917), where the Court said that the following rule, stated in an earlier case, is a sound rule in determining whether an employment which one accepts is incompatible with the duties of an office which he holds:
"'Offices are said to be incompatible and inconsistent so as to be executed by the same person: First. When from the multiplicity of business in them, they cannot be executed with care and ability; or, second, when, their being subordinate and interfering with each other, it induces a presumption that they cannot be executed with impartiality and honesty.'"
While mere membership in the education associations would not be incompatible with a position on the school board under the above-mentioned principles, it is at least conceivable, particularly since we do not know your specific relationship with the educational associations, that certain activities undertaken by members of educational associations might be incompatible with membership on the school board. Whether a common law incompatibility exists is, ultimately, a question for the courts to decide. We only desire to acquaint you with the general principle and do not intend to make a specific determination as to its applicability in your situation.
In summary, neither the statutes nor the state constitution prevent a person from being a school board member and, at the same time, a member of the National and the Kentucky Educational Associations. Mere membership in an educational association, by itself, would not be incompatible under the common law with a position on a school board but it is possible that certain activities undertaken by members of educational associations might be incompatible with membership on the school board by those persons engaging in such activities. The existence of a common law incompatibility is, ultimately, a question for the courts to decide.