Opinion
Opinion By: Chris Gorman, Attorney General; V. Lynne Schroering, Assistant Attorney General
You have asked our office for an interpretation of KRS 161.164(1) and (2) which limit school employees' involvement in campaigns to elect local school board members.
The original version of KRS 161.164 was incorporated by the 1990 General Assembly as part of the Kentucky Education Reform Act (KERA). On June 4, 1992, the Kentucky Supreme Court rendered an opinion holding unconstitutionally broad and vague the portion of KRS 161.164(1) which prohibited school employees from participating in the "activities" of any political campaign for school board. State Board of Elementary and Secondary Education v. Howard, 39 K.L.S. 6 p. 37 (06/06/92). The supreme court held that the remaining portions of the statute were constitutional.
Therefore, with "activities" removed from the statute, KRS 161.164(1) and (2) require:
(1) No employee of the local school district shall take part in the management . . . of any campaign for school board.
(2) No candidate for school board shall solicit or accept any political assessment, subscription, contribution, or service of any employee of the school district.
In interpreting KRS 161.164 we keep in mind that any law that seeks to restrict the individual's right of free speech, especially political discussions, implicates the First Amendment of the
United States Constitution. Brown v. Hartlage, 456 U.S. 45, 52, 102 S. Ct. 1523, 1528, 71 L. Ed. 2d 732 (1982). As the United States Supreme Court stated in
Mills v. Alabama, 384 U.S. 214, 218-219, 86 S. Ct. 1434, 1435-1437, 16 L. Ed. 2d 484 (1966):
Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.
The Kentucky Supreme Court in Commonwealth v. Foley, Ky., 798 S.W.2d 947, 952 (1990), agreed with the First Amendment protection for political speech espoused in
Brown v. Hartlage, supra, and held that these views reflect a proper interpretation of section 1(4) of the Kentucky Constitution.
Among the most fundamental of constitutional rights is the right of citizens to involve themselves in the electoral process.
Commonwealth v. Foley, Ky., 798 S.W.2d 947, 953 (1990). However, to ensure that government service is free from undue political influence, legislatures have balanced the individual right of free political expression with the legitimate concern of effective government service. State Board of Elementary and Secondary Education v. Howard, supra.
As a result of the supreme court's decision in State Board of Elementary and Secondary Education v. Howard, supra, school district employees are no longer prohibited from being involved in the "activities" of a school board campaign. However, the court found constitutional KRS 161.164(2) which prohibits school board candidates from soliciting or accepting a "political assessment, subscription, contribution, or service" from a school district employee. Id. The court stated in Howard:
K.R.S. 161.164(2) is not overly broad. The state has a legitimate compelling interest in regulating the conduct of school board candidates in connection with their ability to receive money and services from school district employees. There is a real and present danger in any system where those who have the overall responsibility for the administration of the schools can attain their position in large part because of solicitations from those who work for the system. Political neutrality for school employees is a sound element in any efficient system of education.
State Board of Elementary and Secondary Education v. Howard, supra, p. 39.
KRS 161.164(2) prohibits a school board candidate from soliciting or accepting a "political assessment, subscription, contribution or service" from a school district employee. Political assessment, subscription or contribution denotes the transfer of money or other things of value. Thus, a school board candidate may not solicit or accept any money, goods or property from a school district employee.
Additionally, a school board candidate may not solicit or accept "services" from a school district employee. KRS 161.164(2). In determining what conduct constitutes a prohibited service we refer to the dictionary definition of services. "Service" is work performed for another or a group; assistance given to someone; and goods or utilities that benefit the public. The Random House Dictionary (First Ballantine Books Edition: April 1984; Twelfth Printing: August 1990)
Political service may often invoke First Amendment principles yet also be the type of political involvement in our school system that the General Assembly seeks to prohibit. Thus, the specific service must be analyzed and the First Amendment right to voice one's political opinion must be balanced against the state's interest in ridding our schools of undue political influence. Sometimes a service to a school board candidate will be so intricately involved in the campaign that it is clearly prohibited by KRS 161.164(2). An example would be when a candidate solicits or accepts a school district employee distributing campaign material, working at a campaign phone bank or driving the candidate to political events. On the other hand, the state's interest in neutral schools is out weighed by school district employees' constitutional right to personally express their preference of a candidate, to read campaign literature, wear a campaign button, or place a sign on their property.
We believe it would be most helpful to school board candidates and school district employees to present our interpretation of services in list form. In forming this list of permitted conduct and prohibited services under KRS 161.164(2), we are aware that First Amendment rights are implicated. The following list balances the rights of school district employees and school board candidates to be involved and state their opinions in the political process with the state's interest in political neutrality in the schools.
PERMITTED CONDUCT: The following items are permitted pursuant to KRS 161.164(2):
1. Registration and voting.
2. Nominating petitions. School district employees may voluntarily sign a school board nominating petition.
3. Expression of opinion. School district employees may privately and publicly express their personal opinions regarding a school board candidate, either in person, by telephone, or in writing.
4. Political pictures and signs. School district employees may voluntarily display school board campaign signs and other signs on their property.
5. Badges, buttons, and bumper stickers. School district employees may voluntarily wear school board campaign badges or buttons. However, no school board candidate badges or buttons may be worn by a school district employee while such employee is on official duty.
6. Campaign literature for personal use. School board candidates may provide on request campaign literature for the personal use of a school district employee.
PROHIBITED SERVICES: A school board candidate may not solicit or accept the following services if performed by a school district employee:
1. Campaign literature distribution. A school board candidate may not solicit or accept the distribution of campaign literature or material by a school employee.
2. Solicitation of political support. A school board candidate may not solicit or accept the services of a school district employee in canvassing a district or soliciting political support for a school board candidate, either in person, by telephone, or in writing. However, school district employees may state, in writing or in person, their personal opinions to others.
3. Providing assistance or working for the school board candidate's campaign.
As a caveat, we have consistently recognized that school board candidates may not solicit or accept contributions and services from school district employees. This prohibition applies equally to agents of the candidate. Therefore, the school board candidate's campaign manager and staff are prohibited from soliciting or accepting the services of school employees on behalf of the campaign.
We will address your specific questions regarding KRS 161.164(1) and (2) in the order presented.
1. May a board candidate accept the endorsement of a local education association or similar employee union?
A school board candidate need not either accept or decline an endorsement of a local education association or similar employee union. KRS 161.164(2) only prohibits a school board candidate from accepting "political assessment, subscription, contribution, or services of any employee of the school district. " An endorsement of a political candidate is merely an opinion giving approval of or offering a statement in support of a candidate. Endorsing a school board candidate is not the same as contributing or providing a service to the campaign. Voluntary endorsement of a candidate is the same as an expression of personal opinion and therefore not prohibited by KRS 161.164.
We believe the right of a local education association or similar employee union to express their preference of a school board candidate by a statement of endorsement is a constitutionally protected First Amendment right. State Board of Elementary and Secondary Education v. Howard, supra.
KRS 161.164(2) should not be read broadly to prohibit a local education association or similar employee union from endorsing a school board candidate. Since KRS 161.164(2) does not mention the term endorsement or opinions, we do not believe that the General Assembly intended to stretch the realm of prohibited conduct to forbid school board candidates from accepting the voluntary endorsement of a local education association or employee union.
2. Can you provide examples of what "services" a board candidate should not accept from district employees?
In the foregoing First Amendment legal analysis we provided several examples of prohibited services pursuant to KRS 161.164(2). Consistent with the legal analysis set forth above we believe the school board candidate may not solicit or accept the following services from a school district employee:
1. Distributing campaign material, literature, or signs.
2. Working for the campaign by canvassing voters, stuffing campaign envelopes, working at a campaign phone bank, or driving the candidate.
3. Performing any fundraising services or contributing money, goods or property.
4. Being involved with the management of a school board campaign.
3. May a board candidate accept cash contributions from a local education association PAC?
No. KRS 161.164(2) clearly prohibits a school board candidate from accepting cash contributions from a political action committee (PAC) whose members are local school employees. State Board of Elementary and Secondary Education v. Howard, supra.
4. May a board candidate accept in-kind contributions from local education association or similar employee union PAC's?
No. You describe "in-kind" contributions to a campaign to be telephone banks, door to door solicitation, and distributing campaign material. While you refer to these campaign functions as "in-kind" contributions, we believe that they are actually services. Under either definition, KRS 161.164(2) prohibits a school board candidate from accepting contributions or services from school employees. The fact that the school employees have formed a political action committee does not change the fact that the employees are actually providing the service or contribution. Allowing the PAC to do indirectly what the school board candidates are prohibited from doing directly is a violation of KRS 161.164(2).
5. May a local education association or similar employee union state that they are providing services and expenditures independent of the candidate?
No. We have described in detail the types of contributions and services that a school board candidate may not accept from a school district employee. The local education association or school employee union may not attempt to evade the statutory prohibition against contributing to school board elections by claiming their actions are independent of the campaign.