Request By:
Ms. Jackie Hodges
13245 Ogden Landing Road
Kevil, Kentucky 42053
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter you requested an interpretation of Section 78 of House Bill 940, the Education Reform Act. Section 78 amends KRS 160.380, which addresses appointments, promotions and transfers of principals, supervisors, teachers and other employees in public schools and restricts the hiring of relatives of board members. Your question, in particular, concerns whether the term "aunt, " which is included in the statutory definition of "relative," encompasses aunts by marriage or refers to aunts related by consanguinity. Generally, "relatives," as defined by the statute, may not be employed in the district where the related board member is in office.
It is the opinion of this office that the term "aunt" does not include aunts by marriage, particularly where the statute has expressly prohibited certain relationships by marriage. Section 78(1)(a) defines relative as "father, mother, brother, sister, husband, wife, son, daughter, aunt, uncle, son-in-law, and daughter-in-law. " Section 78(1)(a) of Act of April 11, 1990, Chapter 476, 1990, Advance Legislative Service 1600 at 1600, amending KRS 160.380. 1 Subsection (2)(f) prohibits superintendents from employing relatives of school board members of the district unless, on the effective date of the Act, the relative is already an employee in that district, the board member is in office, and the relative was first hired prior to the tenure of the board member.
Nepotism is defined as "bestowal of patronage by public officers in appointing others to positions by reason of blood or marital relationship to appointing authority." State ex rel. Robinson v. Keefe, 111 Fla. 701, 149 So. 638 (1933). See also H. Black, Law Dictionary (4th ed. 1957). Relationships have been defined, by statute, as including relationships by consanguinity or affinity within varying degrees of closeness. In determining whether particular laws prohibiting nepotism in public service apply to particular persons due to their relationship to other persons, based on ancestry or marital relationship, courts have applied various methods of computing the degrees of relationship in determining whether nepotism applies. See 11 ALR 4th 826 (1982).
In the statute presented, rather than define relationship by degree, the legislature enumerated specific classes of relatives prohibited from public employment in relation to board members or superintendents or principals. In that context, courts have addressed whether relationships of consanguinity should include relationships by marriage. For example, the term first cousin was not construed to extend a prohibition to one who was a first cousin only by virtue of the fact that her spouse was a first cousin. See Hilbert v. Conlon , 40 Pa. Co. 281 (1913), cited in 11 ALR 4th 826 (1982). The court noted that the nepotism law was disabling legislation which restricted the common right of the individual and observed that, as other relationships by marriage were specifically mentioned in the law, under the maxim "Expressio unius est exclusio alterius," 2 cousin was not found to includecousin by marriage. Hilbert , supra . Similarly, in another case where state nepotism law prohibited school board members from contracting with individuals to whom the member was related as mother, father, brother or sister, the court concluded that that law did not apply to spouses. Board of Education v. Boal, 104 Ohio St. 482, 135 N.E. 540 (1922), cited in 11 ALR 4th 826 (1982).
On three occasions the Office of the Attorney General has been presented with a similar inquiry related to interpretation of KRS 160.180. In 1955 and 1981 this office was asked to interpret KRS 160.180 to determine whether a school board member might vote for a brother-in-law for county superintendent. In 1979 this office received an inquiry as to whether subsection 4 of KRS 160.080 would prohibit a board member from voting for his father-in-law. Subsection 4 of the statute in question specifically designated individuals for whom a school board member could not vote, including father, mother, brother, sister, husband, wife, son, daughter, nephew, niece, aunt, uncle, son-in-law, daughter-in-law, and first cousin. This office concluded that conspicuous by absence were such relationships as father-in-law, mother-in-law, brother-in-law, and sister-in-law. While those relationships could just as easily have been included in the statute, they were not. The office concluded that it was the prerogative of the legislature to determine which relationships would disqualify a board member should he vote for appointments of relatives, and that since KRS 160.180(4) did not list brother-in-law or father-in-law, it was the opinion of the Attorney General that a board member could vote to employ or appoint his or her brother-in-law or father-in-law under that statute. See OAG 55-37, 733, OAG 79-91 and OAG 81-351.
In conclusion, this office has determined on three occasions that relationships by marriage must be expressly included in a statute to fall within the statutory requirements. This is consistent with the rule of statutory construction that the expression of one thing implies the exclusion of the other. In the situation presented, there is no indication of legislative intent for aunt to include aunt by marriage. Therefore, it is the opinion of this office that employment of an aunt by marriage is not prohibited employment
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