Request By:
Mr. Robert Biagi
28 Sequoyah Drive
Shelbyville, Kentucky 40065Mr. Charles G. Phillips, C.P.A.
Evans Phillips and Company
89 Daniel Boone Drive
Barbourville, Kentucky 40906Mr. James F. Simpson, Ph.D.
Superintendent
Williamsburg Independent School District
1000 Main Street
Williamsburg, Kentucky 40769
Opinion
Opinion By: Chris Gorman, Attorney General; Anne E. Keating, Assistant Attorney General
You have requested an opinion interpreting House Bill 182 on school based decision-making which was passed by the General Assembly in 1992, and amended KRS 160.345. Of particular interest is the provision on eligibility of parent representatives to serve on a school council. You ask if the statute, as amended, prohibits a parent representative on the council from being an employee of the district and from being a relative of employees of the school where the council is located. You then ask if you will be eligible to serve as a parent representative if elected prior to the effective date of House Bill 182, but not in compliance with the eligibility criteria of House Bill 182.
Through July 13, 1992, the requirements for parent representatives are as follows:
The parent representatives on the council shall not be relatives of any employee of the school.
KRS 160.345(2)(a). Effective July 14, 1992, the requirements for parent representatives shall be as follows:
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.
Id. You note that the statute sets this requirement in the context of discussing council formation within "[e]ach participating school . . . ." KRS 160.345(2)(a). You also suggested that, in view of the fact that the language formerly stated that parent representatives could not be relatives of an employee of the particular school, the language, "employees' relatives" refers only to relatives of employees in a participating school.
It is the opinion of this office that as of July 14, 1992, parent representatives who are elected after the effective date of the act shall be eligible to serve on a school council so long as they are neither employed by the school district, nor related to employees of the school district. Parent representatives who are elected prior to the effective date of the act must meet the requirements in effect at the time that they begin to serve.
In determining the meaning of the amendment, we rely on the plain meaning of the statutory language in KRS 160.345(2)(a). KRS 446.015. The statutory amendment has expanded to prohibit parent representatives, not only from being relatives of an employee of the school, but also from being employed by the district, and from being related to an employee of the district. Had the General Assembly intended that "employees' relatives" refer, only, to relatives of employees in a particular school, the legislature might have provided that the parent representatives could not be relatives of "any employee of the school" where the council is located. The language just quoted is precisely that which House Bill 182 deleted from the provision in question. The application of this interpretation to your eligibility will be addressed below in discussion of when the amendment applies to parent representatives.
Three additional questions presented to this office concern first, whether House Bill 182 effectively invalidates the elections of parent representatives who meet the eligibility criteria set forth in KRS 160.345 when elected prior to July 14, 1992, but who will not meet the eligibility criteria as of July 14, 1992 when House Bill 182 becomes effective. Second, if so, the question is raised as to whether House Bill 182 is constitutional. Third, if House Bill 182 is constitutional, must a parent representative resign who was validly elected prior to July 14, 1992, but who is not eligible under the terms of KRS 160.345, as amended?
It is the opinion of this office that House Bill 182 operates prospectively to require that parent representatives who are elected after the act becomes effective (July 14, 1992), shall comply with the eligibility criteria imposed by House Bill 182. Therefore, parent representatives who are elected prior to July 14, 1992, need not resign due to the change in eligibility criteria.
School elections are governed by section 155 of the Kentucky Constitution which states:
The provisions of sections 145 to 154, inclusive, shall not apply to the election of school trustees and other common school district elections. Said elections shall be regulated by the General Assembly, except as otherwise provided in this Constitution.
The courts have interpreted this section as a grant of authority to the legislature to determine everything relating to the management and control of the schools of the state except when prohibited by other sections of the constitution. Crook v. Bartlett, 155 Ky. 305, 159 S.W. 826 (1913).
While House Bill 182 changes the eligibility criteria of KRS 160.345, the amendment does not expressly indicate any retroactive application to parent representatives who qualify and are elected prior to the effective date of the act. KRS 446.080(3) addresses retroactivity of statutes as follows:No statute shall be construed to be retroactive, unless expressly so declared.Previously, the courts have held that an act authorizing removal of officers was not to be applied retroactively where the legislature did not so indicate. Holliday v. Fields, Ky., 210 Ky. 179, 275 S.W. 642 (1925). Based on the plain language of KRS 160.345 as amended by House Bill 182, which includes no indication of retroactive application, this office concludes that KRS 160.345, as amended, shall apply prospectively only, to candidates for the office of parent representative.
If there were any doubt regarding construction of KRS 160.345 as amended by House Bill 182, according to Corpus Juris Secundum, hereafter referred to as C.J.S.:Provisions in constitutions and statutes imposing qualifications should receive a liberal construction in favor of the right of the people to exercise freedom of choice in the selection of officers, and in favor of those seeking to hold office. Ambiguities should be resolved in favor of eligibility to office, and constitutional and statutory provisions which restrict the right to hold public office should be strictly construed against ineligibility.
Volume 67, Corpus Juris Secundum, Officers, Section 17, pp.259-260. McGinnis v. Cossar, 230 Ky. 213, 18 S.W.2d 988 (1929). Howton v. Morrow, 269 Ky. 1, 106 S.W.2d 81 (1937).
Finally, it has been said that the point in time at which a required qualification for office exists is a complex judicial question. 67 C.J.S., Officers 18. Our determination is guided by the general principles that a strong public policy exists in favor of eligibility for public office and in favor of eligibility of one who has been elected to public office. Id . at § 15. Ambiguities are resolved in favor of eligibility to hold office, and statutory provisions are strictly construed against ineligibility. Id . at § 17. Taking into consideration the application of these principles to the peculiar office established in KRS 160.345(2), we believe that parent representatives validly elected before the effective date of House Bill 182 may continue to serve out their term without disqualification.
For the reasons set forth above, we do not reach the question of constitutionality of House Bill 182, nor are resignations required. The eligibility criteria of KRS 160.345(2) (a) shall apply prospectively, only, to parent representatives. Therefore, any parent representative who qualifies under the statute and is elected prior to July 14, 1992, may continue to serve on the school council for the remainder of the term for which elected despite the statutory changes in eligibility.