Request By:
Mr. William O. Pollard, Member
Leslie County Board of Education
Hyden, Kentucky 41749
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As a member of the Leslie County Board of Education you have requested an advisory opinion from the Office of the Attorney General on several questions relating to a local board of education, its meetings, the position of secretary to the board, and local superintendent of schools. We will state each question separately and respond to it before going on to the next one.
You first ask the following question:
"Is there a statutory requirement that the Chairman of the Board of Education first request that a motion be made from the floor prior to a motion being made by a regular Board member by said Board member which is germane to the item on the agenda? "
The answer to the principal part of this question is not so much legal, definitely not statutory, as it is established board meeting procedure. KRS 160.290 directs local boards of education to "make and adopt, and . . . amend or repeal, rules, regulations and bylaws for its meetings and proceedings for the government, regulation and management of the public schools and school property of the district, [and] for the transaction of its business. . . ." You informed me that the Leslie County Board has adopted Roberts Rules of Order as its parliamentary procedure guide. Section 4 of this volume prescribes "the handling of a motion." In a nutshell, the ordinary presentation of a motion requires these steps:
1. A member rises and addresses the presiding officer.
2. The member is recognized by the presiding officer.
3. The member proposes a motion.
4. Another member seconds the motion.
5. The presiding officer states the motion to the assembly.
See also Sturgis, Standard Code of Parliamentary Procedure, Chapter 4, Presentation of Motion, at page 18. It is to be noted that it is not a requirement that the chairman or presiding officer request a motion but only that the chairman properly recognize a member for the making of a motion "when business of the kind represented by the motion is in order." Roberts, Section 4, page 27.
Your second question was stated by you as follows:
"When a member of the Board of Education at a regular Board meeting files a motion and receives a second to said motion by another regular Board member, does the Chairman of the Board have the authority to rule said motion out of order when said motion is made for the purpose of hiring a Superintendent of Schools for a term starting July 1, 1978, and extending for a period of four(4) consecutive years when the motion was made at the place on the agenda which called for the employment of personnel and the motion was filed with the Chairman prior to the Chairman advancing from the item of the agenda relative to the employment of personnel to other items on the agenda? "By way of explanation the Chairman ruled that the motion was out of order because the motion was made prior to the expiration of the contract of the present Superintendent, would this additional fact allow said Chairman to overrule the motion because the present Superintendent of Schools' contract does not expire prior to the end of June 30, 1978?"
We refer you to our answer to your first question above. Under the circumstances, as we understand them, we see no legitimate reason for the chairman of the board ruling the motion out of order. The motion was a main motion and one entitled to be brought to the floor for consideration by the board.
As to the second part of your question, the chairman was in error as to the basis for ruling the motion out of order. The statutory and case law is really quite clear that under KRS 160.350 a board of education may agree to enter into a contract with an individual for the position of superintendent before the existing contract of the superintendent has expired so long as the term of no board member will expire in the interim between the making of a contract and its effective date. See Childers v. Pruitt, Ky., 511 S.W.2d 233 (1974); Farley v. Board of Education of Pike County, Ky., 424 S.W.2d 124 (1968); Board of education of Pendleton County v. Gulick, Ky., 398 S.W.2d 483 (1966); Maynard v. Allen, 276 Ky. 485, 124 S.W.2d 765 (1939). If the present contract term for the superintendent position will expire as of June 30, 1978, there is no question about the legality of the board at such time now as it desires making a contract for superintendent to commence July 1, 1978.
Your third question was stated as follows:
"Can the Board of Education select a new Superintendent of Schools prior to expiration of the term of the present Superintendent and in the selection of the new Superintendent fix his contract to start upon the expiration of the term of the present Superintendent? "
We have answered this question in the affirmative in responding to Question 2 above.
Your next question reads:
"Is there a statutory duty inherent with the Secretary of the Board of Education or Superintendent of Schools to act as the legal officer of the Board in directing the Chairman of the Board relative to his rulings to motions presented to the Board and is the Chairman of the Board under a statutory duty to follow the recommendations of the Secretary relative to his rulings on motions or proceedings?"
According to KRS 160.370 the superintendent of schools is the "executive agent of the board," "the executive officer of the board," and "the professional advisor of the board." However, none of these roles authorize the superintendent to act in any capacity even approximating a legal officer to the board. Nevertheless, we view having a familarity with the school laws and guiding the board pursuant to these laws to be a very distinct and legitimate service.
As to the position of secretary of the board, whether also the superintendent or not, we know of no authority by which legal assistance could be given by this individual. KRS 160.440 authorizes a local board of education to appoint a secretary to "keep the records of the board and perform other duties imposed upon him by the board." Serving as a legal assistant is not a legitimate duty to be imposed upon the secretary to the local board of education.
As for any statutory duties placed upon the chairman, it should first be noted that there is no statutory direction that there be a chairman of a school board, let alone establishing such a position and its duties and responsibilities. Still, it is common and accepted practice that a local board will elect a presiding officer for its meetings. We believe the chairman is bound to follow the rules and policies governing the board's meetings. See Roberts, supra, Section 46, at page 375 through 378. If the chairman anticipates the need for assistance in the proper handling of ruling on motions and the like, it is suggested that the board agree upon and appoint a parliamentarian.
In your fifth question you ask the following:
"Can the Superintendent of Schools who also holds a dual role as Secretary to the Board of Education be present during the discussion of the hiring of a Superintendent, or does she have to vacate her position as Secretary to the Board of Education and allow the Board to select a temporary replacement for the Secretary while the meeting concerns the transaction of business relative to the hiring of a Superintendent? "
Several sections of our school laws must be considered in responding to this question. KRS 160.370 provides that the "superintendent shall be the executive agent of the board that appoints him and shall meet with the board except when his own tenure, salary, or the administration of his office is under consideration." KRS 160.440 provides that the "board of education of any district may appoint its superintendent as secretary . . . ." Lastly, KRS 160.270(2) states that the "secretary shall be present at the meetings of the board and shall record in a book provided for that purpose all of its official proceedings . . . ."
It is our opinion the specific prohibitory language of KRS 160.370 prevails over that of the other sections of law mentioned above. If the superintendent of schools is also the secretary of the board, he or she shall not meet with the board when the superintendent's "tenure, salary, or the administration of his office is under consideration." While the two positions of superintendent and secretary may be separable, the body cannot be. In this situation it is our suggestion that a temporary secretary be appointed to take the minutes of the board's proceedings.
Your sixth question, with subparts, is framed as follows:
"Can the Board of Education hire a new Superintendent at a special called meeting of the Board of Education when said meeting is called by three (3) members of the Board pursuant to KRS 160.270 and same being delivered to the Secretary of the Board with a written document signed by said three (3) Board members requesting said meeting, designating the place of said meeting in a proper agenda, setting forth the time, place, and purpose of said special meeting?
Please also advise if there is a statutory or Court interpretation of what constitutes timely notice as to the number of days or hours in which said notice is to be given to all of the Board members by the Secretary of said Board?
Also, if the Secretary of the Board refuses to follow KRS 160.270, is that a violation of Kentucky law which would subject her to immediate removal as Superintendent of Schools and Secretary of the Board, that being held as a legal cause of her immediate suspension?"
The law on special called local school board meetings is found in KRS 160.270(1). The pertinent part of this statute reads as follows:
"Special meetings may be called by the chairman. On request of three (3) members of the board the secretary shall call a special meeting. Each member of the board shall have timely notice of each meeting and the nature, object and purpose for which it is called."
A local board can hire a superintendent or do anything else in a special called meeting which can be done at a regular meeting. See Clark v. Board of Trustees, 164 Ky. 210, 175 S.W. 359, 360 (1915).
In the second part of this question you refer to when a board meeting must be notified of a special session. To be emphasized, KRS 160.270(1) requires each board member to receive "timely notice" of the called meeting. Also, more importantly, we must look at the open meetings law regarding the requirements for holding special meetings. KRS 61.825(1) provides that:
"(1) A special meeting may be called at any time by the presiding officer of the public agency or by a majority of the members of the governing body of the public agency by delivering personally or by mail written notice to each member of the public agency and to each local newspaper or general circulation, each news service and each local radio or television station which has on file with the public agency a written request to be notified of special meetings. Said notice of a special meeting must be delivered personally or by mail at least twenty-four (24) hours prior to the time of such meeting as specified in the notice. If time does not permit giving twenty-four (24) hour notice, then notice that is reasonable under existing circumstances and is calculated to inform the public shall be given to the news media and the public."
Thus, in view of the language in KRS 61.825, we believe the "timely notice" requirement of KRS 160.270(1) is "at least twenty-four (24) hours prior to the time of such meeting as specified in the notice. "
The third part of your question involves the required action of the secretary upon receipt of a proper request for a called special board meeting. Again, KRS 160.270(1) states that "on request of three (3) members of the board the secretary shall call a special meeting. " (Emphasis added.) The statutory language is mandatory in requiring the secretary to call the special meeting and to see that the properly detailed timely notice is given. If the secretary fails to carry out this mandated responsibility, we believe this refusal to act could be the basis for rescission of the secretary's contract. See OAG 77-308, copy attached. We do not, however, see that the failure to perform the functions of the secretary to the board could constitute legal cause for removal from office as superintendent when the same person holds the two positions. KRS 160.350. The two positions are separable.
Your last question is sui generis in that it concerns a possible disqualifying act of a local board of education member. You have asked the following question in this regard:
"Is there a conflict of interest on the part of a board of education member who sells from his business two locks to a contract bus driver's hired driver, where the board member did not receive money from claims or contracts of the board?"
The applicable section of our school laws to this question is KRS 160.180. In pertinent part this section reads as follows:
"(1) No person shall be eligible to membership on a board of education:
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(e) Who, at the time of his election, is directly or indirectly interested in the sale to the board of books, stationery or any other property, materials, supplies, equipment or services for which school funds are expended;
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(2) If, after the election of any member of the board, he becomes interested in any contract with or claims against the board, of the kind mentioned in paragraph (e) of subsection (1) of this section, or becomes a candidate for nomination or election to any office or agency the holding and the discharging of the duties of which would have rendered him ineligible before election, or if he moves his residence from the district for which he was chosen, or if the does anything that would render him ineligible for re-election, his office shall without further action be vacant."
From your question it strikes us that no disqualifying act was committed. The board member did not sell an item of property to the board of education and he did not receive any school funds in payment for this property. See Commonwealth ex rel Hancock v. Marshall, Ky. App., 559 S.W.2d 497 (1977), copy attached.