Request By:
Dr. Leon Mooneyhan, Superintendent
Shelby County Public Schools
P.O. Box 159
Shelbyville, Kentucky 40065
Opinion
Opinion By: Chris Gorman, Attorney General; Lynne Schroering, Assistant Attorney General
You have written our office asking for an interpretation of the school council anti-nepotism statute KRS 160.345(2)(a). Specifically, you inquire whether the spouse of a tenured certified employee who is on leave from the Shelby County School System may serve as a parent member of a School Based Decision Making Council in a Shelby County School System school.
The composition of the school council is legislatively outlined in KRS 160.345(2)(a) which provides:
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 employees of the district or employees' relatives, nor shall they be a local board member or his spouse. None of the members shall have a conflict of interest pursuant to KRS Chapter 45A, except the salary paid to district employees. By July 1, 1993, the State Board for Elementary and Secondary Education shall submit recommendations to the Legislative Research Commission relating to policies and procedures to insure minority representation on school councils.
KRS 160.345(2)(a).
To begin, the school council anti-nepotism clause in KRS 160.345(2)(a) is an attempt by the general assembly to rid our schools of conflicts of interests and favoritism. The school council anti-nepotism clause is similar to the school board member anti-nepotism clause, KRS 160.180(2)(i). Just this year, the Kentucky Supreme Court upheld the constitutionality of KRS 160.180(2)(i) which prohibits persons with relatives employed in the school district from serving on the local school board. Chapman v. Gorman, 39 K.L.S. 9, 9/9/92.
Clearly, the spouse of a school district employee who is not on leave of absence is prohibited from serving on a school council in the school system. KRS 160.345(2)(a). It is significant to note that the Kentucky Education Reform Act (KERA) of 1990 provided that the parent member on the school council could not be related to an employee of the school. KRS 160.345(2)(a). In 1992, the legislature amended KRS 160.345(2)(a) and provided that the parent representative on the school council shall not have a relative employed by the school district. The General Assembly saw the need to expand the anti-nepotism clause for school council members and our decision today should be consistent with this mandate. Thus, in determining whether the school district employee taking an authorized leave of absence is considered an employee for purposes of the anti-nepotism clause of KRS 160.345(2)(a) we are cognizant of the legislature's recent broadening of this statute.
KRS 161.770 governs teachers' leaves of absence and provides that when a teacher returns to work after an authorized leave of absence "he shall resume the contract status which he held prior to such leave." KRS 161.770(3). Additionally, you explain that the Shelby County School System Board Policy 03.123 provides that a teacher shall return to work from a leave of absence without the loss of benefits such as sick leave.
In OAG 73-679 our office held that it was a violation of the conflict of interest statute KRS 156.480 for a teacher on leave of absence to conduct business with the school district. In that case a principal on leave of absence owned a garbage pickup business and he serviced several of the local schools. Our office began its analysis with determining that the teacher on an authorized leave of absence continues to have employment status with the school district. See also OAG 73-486. We concluded that since a teacher on an authorized leave of absence continues in the status of an employee, he will be violating KRS 156.480 if he contracts to do business with the city. OAG 73-679.
The rationale explained in OAG 73-679 should be applied to the facts in this case. A teacher on a leave of absence is merely taking a leave from his duties without remuneration and fully expects to return to his teaching position. Additionally, by statute the school system must allow the teacher to return to his same contract status.
KERA and School Based Decision Making are still very new and not yet fully implemented in Kentucky schools. School councils as well as school boards must be seen as politically neutral and non-biased. A relative of a teacher "on leave" may be perceived as showing favoritism or having a conflict of interest. The anti-nepotism clauses affecting school council members and school board members must be strictly construed in order to rid our schools of even the appearance of impropriety and self-dealing. Often, this will call for making hard choices, as in this case, when the relative has a fine reputation and would serve on the school council at a different school than where her spouse is employed.
In summary, we believe that a spouse of a tenured certified employee who is on a leave of absence may not serve as a parent member of a School Based Decision Making Council in a Shelby County School System school. This opinion is advisory and an individual has the opportunity to address this nepotism question in a court of law. KRS 418.040.