Request By:
Wayne Onkst
State Librarian
Opinion
Opinion By: JACK CONWAY,ATTORNEY GENERAL;Matt James,Assistant Attorney General
Opinion of the Attorney General
Wayne Onkst, State Librarian, has requested an opinion of this office on whether there is a conflict between the offices of school board member and library trustee. We advise that service on a library board created directly by the county is compatible with service as a school board member, but service on a library board of a public library district is not. Persons holding offices subsequently made incompatible may serve out their terms, but may not be reelected or reappointed to one office without vacating the other.
Recently, 2014 KY. ACTS ch. 33, § 1 modified KRS 61.080, adding what are now KRS 61.080(5) and (6). 1 KRS 61.080(5) provides that "no person shall, at the same time, fill any two (2) appointed offices of special purpose governmental entities, as defined in KRS 65A.010, that each have the authority to levy taxes." KRS 61.080(6) provides that "no person shall, at the same time, fill any state office and an appointed office of a special purpose governmental entity that has the authority to levy taxes." However, KRS 65A.010(9)(d) provides that "'special purpose governmental entity' shall not include ? 3. School districts." At issue is whether the offices of school board member and library trustee are compatible under these provisions.
KRS Chapter 173 provides for two methods to provide library services: through libraries directly funded by a local government, or through a public library district. KRS 173.310 allows local governments to establish library services on their own initiative, upon petition by the taxpayers, or to contract for library services from an existing library. It further provides that "when any one (1) of the above methods has been complied with, the legislative bodies of the governing units shall at once make the necessary appropriation or levy to establish and maintain such library service annually and perpetually." KRS 173.340(1) provides that "the management and control of a library shall be vested in a board of trustees." KRS 173.340(2) provides that "in cities the trustees shall be appointed by the mayor and in counties they shall be appointed by the county judge/executive," and KRS 173.340(4) provides that "a library trustee may be removed only by vote of the legislative body of the respective governmental unit from which he was appointed. " Local governments may provide library services themselves through a direct levy. The library boards of such libraries are appointed by the head of the local government, and are removable only by that government.
A public library district may also be created by petition under KRS Chapters 65 and 173. KRS 173. 2 470(1) provides that "districts shall be organized in accordance with the procedures of KRS 65.182," and KRS 173.470(2) provides that "a public library district created pursuant to KRS 65.182 and this section shall constitute and be a taxing district." KRS 173.480 provides that the initial appointees to public library districts are recommended by the Department for Libraries and Archives (unless the district consists of only one county), and KRS 173.490(1) provides that the board of a public library district recommends its successor trustees. KRS 173.490(3) provides that public library district trustees may be removed under the procedures in KRS 65.007, which require cause and a hearing by the appointing authority. Public library districts have the power to tax, recommend their own members, and trustees cannot be removed except for cause after a hearing.
Public libraries are expressly contemplated as special purpose governmental entities. KRS 65A.010(9)(a) provides that a special purpose governmental entity is any entity which:
1.Exercises less than statewide jurisdiction;
2.Exists for the purpose of providing one (1) or a limited number of services or functions;
3.Is governed by a board, council, commission, committee, authority, or corporation with policy making authority that is separate from the state and the governing body of the city, county, or cities and counties in which it operates; and
4.a.Has the independent authority to generate public funds; orb. May receive and expend public funds, grants, awards, or appropriations from the state, from any agency, or authority of the state, from a city or county, or from any other special purpose governmental entity.
KRS 65A.010(9)(a) thus defines a special purpose entity as anything that: 1) exercises less than statewide jurisdiction; 2) provides a limited number of services; 3) is governed by an authority separate from a city or county; and 4) can independently generate or receive public funds. KRS 65A.010(9)(c) expressly provides that "examples of the types of public services that may be provided by special purpose governmental entities include but are not limited to the following ? 4. Library services."
A public library board that is created by a local government under KRS 173.310 does not meet the definition of a special purpose governmental entity. A public library board created by a local government has no power to tax, and must rely on the local government to levy a tax to support it. Although public library boards created by a local government have the power to receive and expend funds from a local government, their trustees are appointed and removed solely by the local government funding them, and they are not independent of the local government. Public libraries created by local governments under KRS 173.310 are therefore not special purpose governmental entities, and the conflicts speci-fied in KRS 61.080(5) and (6) do not apply to them.
In contrast, a public library district has the independent authority to tax, and recommends its own trustees, giving it separate policy-making authority from local governments. A public library district is therefore a special purpose governmental entity. Although there is no conflict between the offices of school board member and public library district trustee under KRS 61.080(5), there is a conflict under KRS 61.080(6). "Public education has long been recognized as a function of State government, and members of boards of education have been held to be state officers." Board of Ed. of Louisville v. Society of Alumni of Louisville Male High School, 239 S.W.2d 931, 933 (Ky. 1951). The office of school board member is a state office. It is therefore not an office in a special purpose govern-mental entity, and the prohibition in KRS 61.080(5) against serving on two special purpose governmental entities does not apply. However, KRS 61.080(6) provides that "no person shall, at the same time, fill any state office and an appointed office of a special purpose governmental entity that has the authority to levy taxes." Since public library districts are special purpose governmental entities with the authority to levy taxes, and the office of school board member is a state office, the offices of school board member and public library district trustee are incompatible under KRS 61.080(6).
Given that the offices of school board member and public library district trustee are incompatible, those currently holding both offices may serve out their terms, although they may not be reelected or reappointed to one office without vacating the other. The offices were previously compatible, but were made incompatible by 2014 KY. ACTS ch. 33, § 1. "Prohibitions of dual officeholding have been held to operate prospectively and not to apply to offices entered upon prior to their enactment." 67 C.J.S. Officers § 39. Since the offices were only recently made incompatible by statute, the conflict between them applies only prospectively. Persons currently serving as both a school board member and public library district trustee may serve out their existing terms, but may not be reelected or reappointed to one office without vacating the other.
In summary, we advise that the office of trustee on a library board created directly by a local government is compatible with the office of school board member, but the office of trustee on a public library district board is not. Persons currently serving in both of those offices may serve out their existing terms, but may not be reelected or reappointed to one office without vacating the other.
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