Request By:
Hon. J. Stephen Kirby
Director of Legal Services
Kentucky School Boards Association
260 Democrat Drive
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
You have requested an opinion from this Office concerning the interpretation of "relative" as that term is used in KRS 160.180 and KRS 160.380. In particular, you ask whether "half-brother" or "step-daughter" are included in the definition of "relative" found in KRS 160.180(1) and 160.380(1)(a) which in each statute is defined to mean:
father, mother, brother, sister, husband, wife, son, daughter, aunt, uncle, son-in-law, and daughter-in-law.
Generally, a "relative," 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 terms "brother" (and "sister" ) include half-brother (and half-sister) , but not step-daughter (or step-son). In OAG 90-68, this Office stated in regard to KRS 160.380:
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 S. 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 some respects, the definition of "relative" by class rather than by degree of consanguinity or affinity is easier to understand and apply. Relatives relate in varying numbers of degrees according to whether the civil-law method or the common-law method applies. Under KRS 160.180 and KRS 160.380, rather than define relationships by consanguinity or affinity within varying degrees of closeness, the General Assembly enumerated specific classes of relatives prohibited from public employment in relation to board members, superintendents, or principals.
In some chapters where the General Assembly has enumerated specific classes of relatives, the legislature has defined the classes of relationships by consanguinity or affinity more closely. For example, the General Assembly has defined "member of a legislator's family," in the context of legislative ethics legislation, in KRS 6.750(10), to mean:
either the legislator's spouse or the legislator's sons or daughters, parents, grandparents, brothers or sisters, whether of the whole blood or the half blood.
In KRS 385.102 of the Uniform Transfers to Minors Act, the General Assembly defined "member of the minor's family" to mean:
the minor's parent, step-parent, spouse, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption.
Nevertheless, it is a basic rule of statutory construction in Kentucky that:
All words and phrases shall be construed according to the common and approved usage of language , but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed according to such meaning.
KRS 446.080(4). (Emphasis added.)
In KRS 160.380(1)(a), where the statute does not further define the meaning of the terms "brother" and "sister, " it is useful to consult dictionaries to ascertain the common, approved usage. Black's Law Dictionary, Sixth Edition, defines "brother" as follows:
One person is a brother 'of the whole blood' to another, the former being a male, when both are born from the same father and mother. He is a brother 'of the half blood' to that other (or half-brother) when the two are born to the same father by different mothers or by the same mother to different fathers. . . .
The Random House Dictionary, 1980, defines "brother" as:
1. a male offspring having both parents in common with another offspring. 2. Also called half brother. a male offspring having only one parent in common with another offspring. . . .
Both definitions indicate that the term "brother" may include brother "of the whole blood, " or "of the half blood. " Kentucky courts have previously interpreted the terms "sister" and "brother" to include whole and half blood relationships for purposes of inheritance taxes, marital law, and in other areas. Barnhill v. Sharon, 135 Ky. 70, 121 S.W. 983 (1909); Burdue v. Commonwealth, 144 Ky. 428, 138 S.W. 296 (1911). This is consistent with caselaw in other states. People v. Elliff, Colo., 219 P. 324 (1923).
In determining whether the terms "brother" and "sister" include step-brother and step-sister, the issue is raised as to whether the terms include relationships of affinity. OAG 90-68 addressed, in particular, whether relationships of consanguinity should include relationships of affinity by marriage, when examining whether the term "aunt" included "aunt by marriage. " We concluded that "aunt by marriage" was not included within the term "aunt. " Nepotism law is disabling legislation which restricts the common right of the individual. Hilbert v. Conlon , 40 Pa. Co. 281 (1913). Where other relationships by marriage were specifically mentioned in the statute in question, under the maxim 'Expressio unius est exclusio alterius,' [Ed.: The expression of one thing implies the exclusion of the other] cousin was not found to include cousin by marriage. In the same manner, where KRS 160.180 and KRS 160.380 explicitly mention relationships by affinity, such as son-in-law and daughter-in-law, but not others, such as step-sister and step-brother, the expression of the one group implies the exclusion of the other.
In conclusion, where KRS 160.180 and KRS 160.380 expressly include the classes of "brother" and "daughter, " but not "step-daughter, " based on the common and accepted usage of the terms "brother" and "sister, " it is the opinion of this office that "half-brother" and "half-sister" are included in the term "relative" as set forth in KRS 160.180(1) and KRS 160.380(1)(a). However, step-brother and step-daughter are not encompassed in the definition of "relative" found in KRS 160.180(1) and KRS 160.380(1)(a).