Request By:
Joseph M. McCorkle
Assistant Superintendent
Franklin County Schools
P.O. Box 980
Frankfort, Kentucky 40602
Opinion
Opinion By: Chris Gorman, Attorney General; Lynne Schroering, Assistant Attorney General, (502) 564-7600
You have asked our office several questions regarding the payment of per diem to school board members pursuant to KRS 160.280(1). First, you inquire whether a school board member is classified as an employee for the purposes of withholding taxes and FICA. Second, you ask if the per diem received by school board members is classified as wages by the Internal Revenue Service. Since these questions involve an interpretation of the federal income tax code, we respectfully decline to provide a legal opinion on this matter. You may wish to ask the Internal Revenue Service for an advisory opinion on the issue of per diem payments to school board members.
Lastly, you ask what is the maximum per diem payment that a district may pay to a school board member in a calendar year. KRS 160.280(1) allows the school district to pay the board member $ 40 per diem for each meeting up to a maximum of $ 1,000 in any calendar year. KRS 160.280(1) states in pertinent part:
Members of boards of education shall receive no salaries, but members of boards of education may receive a per diem of forty dollars ($ 40) in any calendar year, and their actual expenses for each regular or special meeting attended. In no case shall the expenses incurred within the district or per diem of any member exceed one thousand dollars ($ 1,000) in any calendar year.
The maximum annual per diem allowed in KRS 160.280(1) appears inconsistent as this statute provides that a board member may receive a per diem of $ 40 in any calendar year and the maximum per diem shall not exceed $ 1,000 in any calendar year. We have reviewed prior versions of KRS 160.280 in an attempt to clarify this discrepancy. In 1976, KRS 160.280 was amended to provide a per diem of $ 15 in fiscal year 1977 and $ 20 in fiscal year 1978. The General Assembly also allowed a maximum per diem of $ 300 in fiscal year 1977 and $ 400 in fiscal year 1978. Two years later, the 1978 legislature amended KRS 160.280 to remove the references to prior fiscal years and inserted the phrase "in any calendar year" after the $ 20. In removing the references to two prior fiscal years the General Assembly attempted to clarify that a board member may receive a $ 20 per diem for each meeting in a calendar year up to a maximum of $ 400 in any calendar year.
Thus, we believe the phrase "$ 40 in any calendar year" must be construed to mean that the per diem for each meeting remains constant throughout the calendar year and is not a limitation on the total per diem that may be paid in any calendar year.
In OAG 61-313 and OAG 63-620, the Attorney General addressed the payment of per diem to school board members pursuant to the statute preceding KRS 160.280. The earlier statute allowed a $ 10 per diem for each meeting attended and "in no case shall the expense or per diem of any member exceed two hundred dollars per annum." OAG 61-313. Our office held that the board member could receive a maximum of $ 200 in per diem if he attended twenty meetings. Additionally, the board member may receive a maximum of $ 200 in expenses.
We interpret KRS 160.280(1) to allow a district to pay a board member $ 40 for each meeting actually attended up to a maximum per diem of $ 1,000 during any calendar year. Also, the board member may receive reimbursement, up to a maximum of $ 1,000, for actual expenses incurred within the district in any calendar year. KRS 160.280(1).