Request By:
Alva A. Hollon, Jr.
Hollon, Hollon & Hollon
Adams Building
Drawer 779
Hazard, Kentucky 41701
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Assistant Deputy Attorney General
As the attorney for the Knott County Board of Education you have asked the Office of the Attorney General for an opinion regarding KRS 160.180(1)(g). This school law provision, as you acknowledged, provides that to be eligible for membership on a local board of education an individual may not have been removed from membership for cause. Your question is whether a member who voluntarily resigns prior to the institution of an ouster proceeding by the Attorney General is qualified to serve as a member of a board of education at a later time. As stated in your words, the question is whether a board member can "purge himself of any possible disqualifying act by voluntarily resigning prior to the institution of ouster proceedings so that he may become a candidate for the Board of Education and serve if elected." It is our opinion, that under the circumstances described below, a school board member who resigns his or her school board position because of a disqualifying act of misconduct, although arguably still eligible to be appointed to the board to fill a vacancy (including the vacancy created by his or her own resignation) and also still eligible to run for election to a board member position in the future, would, we believe, continue to be subject to removal through Circuit Court action by this Office for the prior disqualifying act of misconduct.
In considering your question, we have reviewed OAG 72-777, copy attached. In that opinion, this Office noted the language of the statute, then 160.180(1)(f), and emphasized the term, "has been removed." We interpreted this term to mean that an individual has been removed from the school board position by a court judgment. We stated that the language does not include a voluntary resignation. We concluded on this issue stating:
"When a person finds himself in a conflict of interest situation, he can thus save himself from embarrassment and also save his eligibility to later serve on the board if he voluntarily resigns. When a person is removed by a court order, he is forever barred from serving on a board of education. "
In OAG 72-777, supra, there is no reference to any Kentucky case law. Your opinion request has caused us to reevaluate our position on the issue in question. We have reviewed the case of
Letcher v. Commonwealth, Ky., 414 S.W.2d 402 (1967). One of four contentions dealt with by the former Court of Appeals in the Letcher case was whether a school board member's reelection and assumption of a new term of office made the member liable for actions of misconduct taken in a prior term. The Court decided this issue as follows at 414 S.W.2d 405 stating:
"It is concluded that as to a board member for whom disqualification becomes a bar to holding such office in the future, the Legislature intended that the assumption of office under a new term does not 'whitewash' any misconduct occurring in a previous term." (Emphasis ours.)
The Court referred to and quoted from the decision in
McLaughlin v. Shore, 152 Ky. 746, 154 S.W. 45, 47 (1913) as follows at 414 S.W.2d 404:
"The purpose of the statute is to exclude from office under the board persons who violate its provisions, and the object of the statute would be largely defeated if it were held that an officer who concealed his offense until after that term had expired could continue to hold office under a new election. The meaning of the statute is that persons who have violated its provisions shall not thereafter be permitted to hold office under the board."
In Letcher, supra, the Court of Appeals overruled
Graham v. Jewell, 204 Ky. 260, 263 S.W. 693 (1924) where the Court had reasoned that each term of office is a separate entity and that the weight of authority denied removal for acts of misconduct committed in a prior term.
This Office is quite mindful of the scope of this opinion and of the statutory fact it is only the Attorney General who can bring an action seeking the removal of a board of education member for having committed a disqualifying act of misconduct as enumerated in KRS 160.180. See KRS 415.050 and 415.060. As the Court in Letcher noted, "Ouster from office and disqualification to hold such office in the future is a drastic penalty." Nevertheless, under the existing case law, it is the opinion of this Office that a resignation from office by a school board member prior to the initiation of an ouster proceeding will not purge the board member's disqualifying acts of misconduct so as to preclude this Office from instituting a quo warranto or ouster action in the future should the board member, after resignation, be appointed to or gain a school board member position by election. We believe the Court of Appeals has made clear that a reappointment or reelection to a school board member position does not stand as condonation of prior disqualifying acts of misconduct and that such acts continue to provide legal cause to remove a school board member from membership. However, we do not believe this interpretation of the law is applicable where, rather than the commission of a disqualifying act of misconduct being an issue, the age, citizenship, education or holding of another office eligibility qualifications for school board membership are involved.
In view of this opinion, OAG 72-777 is hereby modified accordingly.