Request By:
Mr. Charles "Dusty" Singleton, Jr.
4006 State Route Five
Ashland, Kentucky 41102
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your letter to this Office, you have asked whether there is a potential conflict of interest between your position as a member of the Boyd County Board of Education, and your position as a parent member of the Site-Based Decision Making Council at the Boyd County High School. In a separate letter you raised several questions concerning site-based decision making which we will address under separate cover.
There are two statutes which address eligibility criteria for membership on a local school board or on a school council. KRS 160.180 sets forth the eligibility criteria for membership on a local school board. Two provisions address conflicts of interest:
(2) No person shall be eligible to membership on a board of education:
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(g) Who, at the time of his election, is directly or indirectly interested in the sale to the board of books, stationery, or any other property, materials, supplies, equipment, or services for which school funds are expended. . . .
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(3) If, after the election of any member of the board, he becomes interested in any contract with or claims against the board, of the kind mentioned in paragraph (g) of subsection (2) of this section, or becomes a candidate for nomination or election to any office or agency the holding and the discharging of the duties of which would have rendered him ineligible before election, or if he moves his residence from the district for which he was chosen, or if he attempts to influence the hiring of any school employee, except the superintendent of schools or school board attorney, or if he does anything that would render him ineligible for re-election, he shall be subject to removal from office pursuant to KRS 415.050 and 415.060.
The conflicts of interest described in KRS 160.180(2)(g) have been described by the courts as being disqualifying interests that are pecuniary or proprietary. The officer must stand to gain or lose something, as in contracts with a firm in which the member is a partner, or a corporation in which the board member is an officer, majority shareholder or employee. C.W. ex rel Vincent v. Withers, 98 S.W.2d 24, 25 (1936). The self interest may be indirect or very small, but the opportunity for self-benefit should be more than a mere possibility. Id at 25. KRS 160.180(2)(g) would not appear to apply in the situation presented, based on the available facts, where no information is presented to suggest that the board member would have a proprietary or pecuniary interest in matters before the board as a result of service as a council member. However, the provision in KRS 160.180(3) relating to influence in hiring may conflict with certain provisions of KRS 160.345, the statute on school-based decision making by school councils as set forth below.
KRS 160.345(2)(a) and (b) define the composition of a school council:
(a) Each participating school shall form a school council which shall be composed of two (2) parents, three (3) teachers, and the principal or administrator. The membership of the council may be increased, but it may only be increased proportionately. The parent representatives on the council shall not be relatives of any employee of the school.
(b) The teacher representatives shall be elected for one (1) year terms by a majority of the teachers. The parent representatives shall be selected for one (1) year terms. The parent members shall be elected by the parent members of the parent teacher organization of the school or, if none exists, the largest organization of parents formed for this purpose. The principal or head teacher shall be the chair of the school council.
(Emphasis added.) You stated in your letter that you were standing for election as a parent representative on the school council. The express language of the statute does not preclude a board member from seeking election as a parent representative on the school council.
KRS 160.345 goes on to delineate among the responsibilities of the local board, the principal and the school council. The local board of education sets policies for implementation of school-based decision making in the following areas: school budget, student progress; school improvement plans; professional development; participation of parents, citizens and community in council activities; cooperation inside and outside of the district with public agencies; etc. The board may also grant to the councils any other authority permitted by law. KRS. 160.345(3).
The council has responsibility for setting school policy. KRS 160.345(2)(c). The council selects instructional materials and student support services. KRS 160.345(2)(h). The council determines the number of individuals to be hired and makes personnel decisions on vacancies as authorized by KRS 160.345(2)(g) and (i):
(g) After receiving notification of the funds available for the school from the local board, the school council shall determine, within the parameters of the total available funds, the number of persons to be employed in each job classification at the school. The council may make personnel decisions on vacancies occurring after the school council is formed but shall not have the authority to recommend transfers or dismissals.
(i) From a list of applicants recommended by the local superintendent the principal at the participating school shall select personnel to fill vacancies, after consultation with the school council. . . . Personnel decisions made at the school level under the authority of this subsection shall be binding on the superintendent who completes the hiring process. . .
It is the opinion of this Office that a potential conflict of interest exists between the requirements of KRS 160.180(3) for members of boards of education on influence in hiring school employees, and the duties authorized by KRS 160.345(2)(g) and (i) for members of site-based councils. KRS 160.180(3) expressly prohibits a member of a board of education from having any influence on hiring of school personnel, while KRS 160.345(2)(g) and (i) give members of the council authority to recommend candidates to the principal to be hired. Were any such influence to occur, the eligibility of the school board member would be at stake.
Note that in Kentucky, a member who abstains from voting is counted as acquiescing with the majority of those present who voted. Payne v. Petrie, KY., 419 S.W.2d 761 (1967). The member would have to disqualify himself from voting to avoid having the vote counted with the vote of the majority.
Even if the board member were to disqualify himself, while serving on the council, from engaging in any consideration of applicants or from voting on recommended applicants for school district positions, thereby eliminating potential conflicts over hiring issues, other potential conflicts could develop. The local school board, by statute, has responsibility for the general control and management of the schools in the district, and has very broad powers. KRS 160.290. The purpose of school-based decision making is to decentralize some of that control and management, by allowing a body comprised of teachers, parents and an administrator to make decisions for the school without the necessity of board approval in every instance. Under KRS 160.345(3), the board sets policies for the councils of the district on areas in which the interests of the board may differ from the interests of the councils. For example, the board may wish to retain more control over such matters as assessment, school improvement and the budget than the councils would like.
In all of the areas in which the board sets parameters for the councils, the board member who is also a council member may have conflicting interests. An officer who has an interest in a matter cannot vote on it. City of Springfield v. Haydon, 216 Ky. 483, 288 S.W.2d 337. While the interest may not be proprietary or pecuniary, it is against public policy for an officer to vote on a matter of even indirect interest. OAG 80-293.
Even if a board member who serves on a council abstains from voting on any matter that appears to be an area of dual responsibility, to serve as a parent representative creates the appearance of undue influence on the part of the incumbent to the extent that the perception may be present that the council has special influence on board actions, or that the board has special influence on council decisions. OAG 78-159.
In conclusion, it is the opinion of this Office that if a school board member is elected to a site-based decision making council, the provisions of KRS 160.180 and 160.345 create potential statutory conflicts of interest should that board member attempt to carry out the duties of both positions with regard to hiring decisions. Even if the hiring provisions of KRS 160.180 and 160.345(2)(g) and (i) were not in conflict, public policy prohibits an officer from voting on any matter in which he has an indirect interest. Finally, the officer might be subject to allegations of the appearance of improprietary should he attempt to serve in the positions of board member and council member simultaneously.