Request By:
Hon. Robert B. Conley
P.O. Box 1545
Ashland, Kentucky 41105-1545
Opinion
Opinion By: Chris Gorman, Attorney General; Lynne Schroering, Assistant Attorney General
In light of the Supreme Court's recent ruling in Chapman v. Gorman, 39 K.L.S. 9, p. 33, 11/19/92, you have written our office regarding the eligibility of several Greenup County School Board Members who have relatives employed in the school system.
As part of the Kentucky Education Reform Act the legislature enacted an anti-nepotism statute for school board members. KRS 160.180(2)(i). This statute provides:
No person shall be eligible to membership on a board of education:
* * *
(i) Who has a relative as defined in subsection (1) of this section employed by the school district and is elected after July 13, 1990. However, this shall not apply to a board member holding office on July 13, 1990 whose relative was not initially hired by the district during the tenure of the board member.
KRS 160.180(2)(i).
In Chapman v. Gorman, supra, the Supreme Court upheld the constitutionality of the anti-nepotism statute KRS 160.180(2)(i). The plaintiff Chapman was initially elected to the school board in 1958 and was last re-elected in 1990. Chapman's daughter was hired as an employee of the school district in 1962 and she remains in its employ. The Court found that the anti-nepotism statute did not violate the board member's First Amendment rights or her rights under the Equal Protection Clause.
The Chapman opinion notes that KERA removed the school board from direct personnel involvement and placed the employment decisions in the hands of the superintendent. KRS 160.370 and KRS 160.380(2)(a). In fact, a board member takes an oath "that he will not in any way influence the hiring or appointment of district employees." KRS 160.170. However, the Court recognized that the local school board hires and determines the salary of the superintendent and thus the board has indirect influence concerning personnel matters. Chapman v. Gorman, 39 K.L.S. 9, p. 36.
The Court in Chapman was guided by its earlier decision in
Rose v. Council for Better Education, Ky., 790 S.W.2d 186 (1989). In Rose the Court stated that the legislature was under a constitutional mandate to establish an "efficient" public school system and that schools must be operated with "no political influence." Id. at 213. Consequently, the Court determined that the anti-nepotism statute is a lawful attempt by the General Assembly to rid our school system of favoritism and the appearance of nepotism. Chapman v. Gorman, 39 K.L.S. 9, p. 36. The decision of the Kentucky Supreme Court in Chapman was final on November 19, 1992.
As legal counsel for the Greenup County School Board you have written our office concerning three Greenup County School Board Members who may be affected by the Supreme Court's ruling in Chapman v. Gorman, supra.
The first board member initially took the oath of office in January of 1991 and has an aunt who is a blood relative working as a classified employee for the school system. It is the opinion of our office that this board member is ineligible to serve as a board member due to his aunt's employment with the school district. KRS 160.180(2)(i). The board member should immediately tender his resignation to the school board so that a board member may be appointed to fill his vacancy. KRS 160.190.
The second board member was re-elected in November 1992. The board member's spouse is currently working for the school system and was hired after he became a board member. It is the opinion of this office that this board member is ineligible to serve as a board member due to his wife's employment with the school district. Thus, this board member should immediately tender his resignation to the school board so that a board member may be appointed to fill his vacancy. KRS 160.190.
The third individual is a prospective board member who was recently elected in November 1992. This board member has a father and a sister who are currently working as classified employees for the school system. It is the opinion of this office that this board member is ineligible to serve on the board due to the school district's employment of his father and sister. While this individual has not yet taken the oath of office, we believe that he should decline to take the oath of office and immediately inform the school board of his intent not to take the oath. The burden is then on the school board to inform the Chief State School Officer that a vacancy exists on the board. OAG 69-80. See also
Logan County Board of Education v. Fowler, Ky., 43 S.W.2d 691 (1931).
You have also asked several questions relating to the possibility that the members will refuse to resign. The Attorney General is authorized to initiate an ouster proceeding against a school board member who is not eligible or qualified to hold office. KRS 415.050 and KRS 160.180. Thus, if the board members refuse to resign then the Office of the Attorney General may instigate ouster proceedings against the ineligible members. See OAG 82-32.
You ask whether the ineligible members may take the oath of office in January assuming they refuse to resign. We believe that the board members are not eligible to serve as board members and should resign their posts. However, unless a private citizen is claiming the office for himself, we are unaware of any proceeding short of an Attorney General ouster complaint which could prevent these individuals from taking the oath of office.
Hermann v. Morlidge, Ky., 183 S.W.2d 807 (1944).
You have also asked about the validity of a vote of an ineligible board member who has taken the oath of office. We previously addressed this issue in OAG 70-757 and held that a board member is a legal member of the board until he resigns or is ousted by an order of court. The member is considered a "de facto" officer and discharges his duties under color of title.
Commonwealth v. Winstead, Ky., 430 S.W.2d 647 (1968). Thus, any action taken by the board is legal notwithstanding the vote of the ineligible member.
We do not need to address your final question since the board members who have taken the oath of office may vote until they either resign or have been ousted by a court order.