Request By:
The Honorable Alva A. Hollon, Jr.
Hollon, Hollon & Hollon
Hollon Building
Drawer 779
Hazard, Kentucky 41701
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter you raised two questions regarding the Education Reform Act of 1990 (the "Act"). Your first question relates to the eligibility of an incumbent board member to run for re-election after the effective date of the Act, that being July 13 1990. This question is addressed in two statutes that were amended by the Act.
KRS 160.180 was amended by the Act to provide that no one is eligible for membership on a board of education who is elected after the effective date of the Act and who has a relative employed by the school district. An exception to that rule, set forth in KRS 160.180(2)(i), makes it clear that board members in office on July 13, 1990, may remain in office if the relative was not initially hired by the district during the tenure of the board member.
No person shall be eligible to membership on a board of education:
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(i) Who has a relative as defined in subsection (1) of this section employed by the school district and is elected after July 13, 1990. However, this shall not apply to a board member holding office on July 13, 1990 whose relative was not initially hired by the district during the tenure of the board member.
KRS 160.380(2)(f) was amended by the Act to state:
No superintendent shall employ a relative of a school board member of the district, unless on July 13, 1990, the board member's relative is an employee of the district, the board member is holding office, and the relative was not initially hired by the district during the tenure of the board member. A relative employed in 1989-90 and initially hired during the tenure of a board member serving on July 13, 1990, may continue to be employed during the remainder of the board member's term. However, the superintendent shall not promote any relative of a school board member who continues employment under the exception of this subsection.
You present the following facts: the board member in question has served continuously as a member of the local board of education from 1955 up to present and ran for re-election in the fall of 1990. His spouse worked for the board of education as a teacher in 1948-49, before the two were married. After leaving teaching for a few years, the spouse returned to work as a teacher from 1956-1985, when she retired. After one year's absence, the spouse returned to work as a teacher in 1986 and is currently employed as a teacher.
Your question concerns the meaning of "initially hired" in KRS 160.380. This issue was addressed in OAG 90-126 in which we held that "initially hired" contemplates the beginning of a relative's continuous employment by the school district, whether that employment is in a classified position or certified position and whether that employment is part-time, temporary, or full-time. Continuous employment is ended if the relationship between the employer and the employee is severed.
In the situation that you present, the spouse's "initial employment" would be when the spouse most recently came on board and remained continuously employed, that being the school year of 1986-87. Accordingly, as the board member became a member of the board in 1955, and the spouse subsequently became employed, the spouse could continue to be employed only for the remainder of the board member's current term in accordance with KRS 160.380, as amended. Under the facts presented, that term ended December 31, 1990. Under KRS 160.180, as amended, the board member, while eligible to run for re-election, would not be eligible for membership on the board if the relative remained employed with the district once the member had taken the oath of office. A board member attempting to serve, under those circumstances, could be subject to ouster. We are enclosing a copy of OAG 90-141 on this general topic.
Secondly, you ask for an interpretation of Section 74 of House Bill 940, amending KRS 160.290(1). That statute, which formerly provided that the board of education had authority to appoint officers, agents and employees deemed necessary and proper, to prescribe their duties and fix their compensation and terms of office, now provides:
Each board of education shall have general control and management of the public schools in its district and may establish schools and provide for courses and other services as it deems necessary for the promotion of education and the general health and welfare of pupils, consistent with the administrative regulations of the State Board for Elementary and Secondary Education. Each board shall have control and management of all school funds and all public school property of its district and may use its funds and property to promote public education. Each board shall exercise generally all powers prescribed by law in the administration of its public school system, appoint the superintendent of schools, and fix the compensation of employees.
Your question, in particular, is whether the board of education continues to have authority to create positions.
The board of education continues to have responsibility for "general control and management of the public schools in its district." This includes "control and management of all school funds," and includes setting compensation of employees." KRS 160.290. This office has previously taken the position that a local board has the power and authority to create and abolish positions of employment in its school system. OAG 79-78 and OAG 78-41. It is the opinion of this office that the board, alone, continues to have the power to create and abolish positions. It would not be possible to maintain general control and management of the district and to budget school funds without having ultimate control over expenditures. Of course, it remains the responsibility of the superintendent to make decisions on how and when to fill positions.
You also asked whether the board of education may provide a job description for any employee of the board of education, and point out that, while Subsection (1) of KRS 160.290, as amended, removes the authority of the board of education to prescribe duties for an employee, subsection (2) gives the board authority to adopt rules and regulations concerning the qualifications and duties of employees. Based on that language it does, indeed, appear that the board may, in general, prescribe qualifications and duties of categories of employees while the superintendent prescribes, with more specificity, the duties of individual positions.