Request By:
Mr. Gyndel E. Garnett
Superintendent
Graves County Schools
1007 Cuba Road
Mayfield, Kentucky 42066
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of March 5 in which you raise the following questions with respect to the right of an employee of the State Division of Forestry to become a candidate for and serve, if elected, on the Graves County Board of Education:
"1. Would Mr. Sorensen's employment with the State Division of Forestry be in conflict with any existing statutes should he decide to run for Graves County School Board Member?
2. If your response to the above question is negative, would Mr. Sorensen be in conflict with any existing statutes should he be successful in his efforts to become a member of the Graves County Board of Education and continues to be employed by the Kentucky State Forestry Division?"
Our response to both of the above questions would be in the negative even assuming that the employee in question is under the state merit system.
Neither Section 165 of the Constitution nor KRS 61.080 dealing with incompatible offices prohibits a person, who holds a particular office that may or may not be incompatible with the one he seeks, from becoming a candidate for public office. It is only when the person elected holds an office that is incompatible with one to which he is elected that the referred to sections of the Constitution and statute become affected. See KRS 61.090. There are certain exceptions not applicable here which we will not refer to.
Next referring to the state merit system statute, KRS 18A.140(4), prohibiting political activity by merit employees, we quote the following excerpt:
"Officers or employes of the classified service may be candidates for and occupy a town or school district office if the office is one for which no compensation, other than a per diem payment, is provided and the election is on a nonpartisan basis."
The above statute clearly permits a merit employee to become a candidate for a school district office and at the same time hold that office, if elected, since such office is filled on a nonpartisan basis and the compensation is on a per diem basis.
There is, of course, always a possibility of a common law conflict of interest where the individual cannot perform the duties of both offices with care and ability. This, however, is a question that only the courts can determine.