Request By:
Honorable Calvert T. Roszell
Greenebaum, Doll & McDonald
156 Market Street
P.O. Box 1808
Lexington, Kentucky 40593
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
You have asked the Office of the Attorney General for an opinion as to "whether, under Section 165 of the Constitution, KRS 160.180, an Assistant Commissioner of the Kentucky High School Athletic Association, an unicorporated association composed of secondary public and parochial schools in the State of Kentucky, under the direct supervision of the State Board of Education, with principal office located in Lexington, Fayette County, Kentucky, is eligible for membership on the Fayette County Board of Education." As you noted, the Kentucky High School Athletic Association supervises athletics in the State of Kentucky and determines, among other matters, the eligibility of respective student athletes.
Before getting into the eligibility for membership on a local board of education issue, we believe it important to briefly discuss further the nature of the Kentucky High School Athletic Association (KHSAA). The Association is a voluntary unincorporated Association. By membership in the Association a school voluntarily agrees to abide by the Association's constitution, bylaws and rules. See
Ky. H.S. Ath. Ass'n v. Hopkins Cty. Bd. of Ed., Ky. App., 552 S.W.2d 685 (1977). These rules relate to eligibility of students, duties of school officials, rules governing contests, etc. The KHSAA constitution, in Article IV, dealing with administration and legislation, provides that there is to be elected by the board of control a commissioner and assistants.
Also of importance is the 1978 amendment to KRS 156.070 by Senate Bill 60. KRS 156.070 now reads in pertinent part as follows:
"(1) The state board of elementary and secondary education shall have the management and control of the common schools, including interscholastic athletics, and the Kentucky school for the blind.
(2) The board may designate an organization or agency to manage interscholastic athletics in the common schools, provided that the rules, regulations and by-laws of any organization or agency so designated shall be approved by the board, and provided further that the board shall adopt regulations providing for the appeal to the board of any decisions made by the designated managing organization or agency."
KHSAA is the agency designated by the State Board for Elementary and Secondary Education pursuant to the above statutory language. Nevertheless, KHSAA still remains an independent body rather than a state agency. Certainly the officers and employees of KHSAA are not state employees in any sense of the term.
With the above in mind, we now turn to the consideration of whether an Assistant Commissioner is eligible for membership on a local public common school board, which school system has voluntarily become a member school in KHSAA. We see no constitutional or statutory incompatibility under Section 165 of the Kentucky Constitution, KRS 61.080, or KRS 160.180. As you have recognized from the case authority cited in your opinion request letter, our Kentucky appellate courts have stated there exists two kinds of incompatibility between offices. In
Adams v. Commonwealth, Ky., 268 S.W.2d 930, 931 (1954), the Court of Appeals stated in this regard as follows:
"The first is a constitutional or statutory incompatibility, which is one so declared by the Constitution or legislative enactment. The second is a common-law or functional incompatibility, which is declared by courts without the aid of specific constitutional or statutory prohibition when the two offices are inherently inconsistent or repugnant, or when the occupancy of the two offices is detrimental to the public interest.
Barkley v. Stockdell, 252 Ky. 1, 66 S.W.2d 43;
Polley v. Fortenberry, 268 Ky. 369, 105 S.W.2d 143. The constitutional and statutory enumerations of incompatible offices are not the exclusive instances of incompatibility.
Knuckles v. Board of Education of Bell County, 272 Ky. 431, 114 S.W.2d 511."
Thus, we must consider whether there is a common law or functional incompatibility involved in your situation.
We believe a finding of functional incompatibility must be supported by fact showing the two offices involved are "inherently inconsistent or repugnant, or when the occupancy of the two offices is detrimental to the public interest. " See Adams, supra. The situation you have presented to us is not supported by such facts in our opinion and therefore we do not believe a functional or common law incompatibility exists. However, we do believe prudence only dictates that should this Assistant Commissioner be elected as a school board member, he should disqualify himself and refrain from participating in any decision making as an Assistant Commissioner of KHSAA relating to the athletics of the school system for which he is a board member and vice versa. That is, when as a local school board member, issues are presented to the local board relating directly to matters governed by KHSAA rules, regulations or guidelines, the individual should likewise disqualify himself and refrain from any participation in the matter.