Request By:
Senator Landon C. Sexton
H.C. 82, Box 846
Pine Knot, Kentucky 42635
Opinion
Opinion By: Chris Gorman, Attorney General; Lynne Schroering, Assistant Attorney General
You have asked our office if a school board candidate may express his preference of a superintendent during the campaign. Yes, a school board candidate has a first amendment right to state his preference of a superintendent during the campaign. However, as explained below, the candidate may step beyond the first amendment protection if he attempts to illegally influence a voter in violation of KRS 161.164(3).
Political discussions by candidates implicate the right to free speech guaranteed by the First Amendment to the United States Constitution. Mills v. Alabama, 384 U.S. 214, 218-219, 86 S. Ct. 1434, 1435-1437, 16 L. Ed. 2d 484 (1966). Since the First Amendment was created to insure the exchange of ideas for bringing about political and social changes then it stands to reason that the constitutional guarantee has its fullest application during campaigns for political office. Monitor Patriot Co. v. Roy, 401 U.S. 265, 271-272, 91 S. Ct. 621, 625, 28 L. Ed. 2d 35 (1971).
The United States Supreme Court articulated a candidate's right to engage in political speech in Whitney v. California, 274 U.S. 357, 375, 47 S. Ct. 641, 648, 71 L. Ed. 1095 (1927) (concurring opinion):
The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates. Indeed, it is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day.
In Kentucky, an examination of the First Amendment rights of political candidates would not be complete without reference to Brown v. Hartlage, 456 U.S. 45, 102 S. Ct. 1523, 71 L. Ed. 2d 732 (1982). This case rose from the lower courts of Kentucky up to the United States Supreme Court. Brown was a candidate for public office in Jefferson County and during his campaign he pledged to lower his salary if elected. Upon learning that this promise may be a violation of Kentucky's Corrupt Practices Act, Brown retracted his pledge and ultimately won the election. Brown's victory was successfully attacked in the Kentucky court system and a new election was ordered as a result of the pledge. The United States Supreme Court reversed the Kentucky court and found the promise to lower salaries was political speech protected by the First Amendment.
Brown v. Hartlage acknowledges the State's authority to restrict some political speech by candidates but cautioned that the First Amendment requires the government have a legitimate compelling state interest and the restriction shall not unnecessarily proscribe protected speech. Brown v. Hartlage, 456 U.S. at 53-54, 102 S. Ct. at 1529.
Some campaign promises are not only legitimate and critical to the democratic process but also constitutionally protected. Brown v. Hartlage, 456 U.S. at 55, 102 S. Ct. at 1530. "Candidate commitments enhance the accountability of government officials to the people whom they represent, and assist the voters in predicting the effect of their vote." Id. Some voters may find their personal self interest is reflected in the campaign promises and the Supreme Court has noted that the "taint" of individual benefit is part of the voting process. Id. "[O]ur tradition of political pluralism is partly predicated on the expectation that voters will pursue their individual good through the political process, and that the summation of these individual pursuits will further the collective welfare." Id. However, the Supreme Court warns that the anticipated personal benefit must be achieved through the normal process of government, and not through some "private arrangement." Id.
In Commonwealth v. Foley, Ky., 798 S.W.2d 947, 953 (1990), the Kentucky Supreme Court held that the political speech First Amendment protection expressed in Brown v. Hartlage, supra, was also incorporated in Sections 1(4) and 6 of the Constitution of Kentucky. Therefore, any Kentucky restrictions on a candidate's political expression should be analyzed using the legal standard enunciated above.
The Kentucky General Assembly has enacted KRS 161.164(3) which may restrict the political speech of candidates and provides:
No person shall use or promise to use, directly or indirectly, any official authority or influence, whether possessed or anticipated, to secure or attempt to secure for any person an appointment or advantage in appointment to a position as teacher or employee of any district board of education, or an increase in pay or other advantage in employment in any such position, for the purpose of influencing the vote or political action of any person.
KRS 161.164(3).
Obviously, the legislature was attempting to rid the school system of the corrupt "private arrangements" referred to in the Brown v. Hartlage opinion. The United States Supreme Court did not develop a test to determine when political speech has crossed the line of constitutional legitimacy. The Supreme Court listed several factors to consider when analyzing the constitutional protection to be afforded political expression: the precise nature of the promise; the conditions upon which it is given; the circumstances under which it is made; the size of the audience; and the nature and size of the group to be benefited. Brown v. Hartlage, 456 U.S. at 54, 102 S. Ct. at 1530.
We believe that the above stated constitutional factors should be utilized when determining whether a political expression or promise by a school board candidate has violated KRS 161.164(3). A questionable situation must be reviewed on a case by case basis with a thorough investigation of the surrounding facts. Thus, it may not violate KRS 161.164(3) for a school board candidate to state in a political speech that the current superintendent is doing a great job and the candidate will work for four more years of a successful school district. On the other hand, it may be a violation of this statute for a school board candidate to make a "private arrangement" with an individual that in exchange for a sizable contribution he would be guaranteed the position if elected.
It must also be emphasized that as a result of the Kentucky Education Reform Act (KERA), local school boards no longer have hiring authority over school district employees, although the school board still appoints the superintendent and school board attorney. KRS 160.170, KRS 160.290, KRS 160.370. All school board members must take an oath of office affirming that they will not attempt to influence the hiring of school district employees. KRS 160.170.
You have also asked for an Attorney General's opinion interpreting KRS 161.164 and the extent of school employee's involvement in a school board campaign. We recently addressed this issue in OAG 92-145 and have enclosed a copy herein.
In summary, a statement by a school board candidate that he prefers a certain individual to serve as superintendent is protected by the first amendment of the United States Constitution and the Kentucky Constitution. We hope our legal analysis will assist you in determining whether other political promises by a school board candidate are protected speech pursuant to the Kentucky and United States Constitutions.