Request By:
Mr. Scott C. Detrick
4714 Taylor Boulevard
Louisville, Kentucky 40215
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 4 in which you present the following facts and question:
"I am presently a member of the Board of Education of Jefferson County, Kentucky. I was a member of the old Louisville School Board at the time of the mergar between the Louisville School Board and the Jefferson County School Board. The boards were merged pursuant to the 'Blume Bill', the constitutionality of which was upheld in the case of Board of Education of Louisville, Kentucky v. Board of Education of Jefferson County, Kentucky, Ky., 522 S.W.2d 854. Under the terms thereof, I am permitted to serve out my unexpired term. I was elected to a four-year term on the old Louisville Board in 1974 and my term expires in 1978. I presently reside in one of the seven districts established by the Blume Bill and there is a vacancy and an election will be held to fill that vacancy in 1977.
"My question, therefore, is whether or not I may file for election to the vacant seat and still retain my seat which I now hold as a result of the Blume Bill.
"I am concerned about KRS 160.180, Section 2, and do not want to do anything which would result in my present office becoming vacant. I enclose an opinion from Henry Triplett who expressly authorized me to share this with you, and I would certainly appreciate your earliest reply."
KRS 160.180 (2) provides, in effect, that if, after the election of any member of the board, he becomes a candidate for nomination or election to any office or agency, the holding and the discharging of the duties of which would have rendered him ineligible before election, his office shall without further action be vacant. We also might refer to subsection (3) which authorizes a board member to run for re-election.
Subsection (2), referred to above, has been construed in the case of Commonwealth v. Miller, Ky., 272 S.W.2d 468 (1954), wherein it held that a member of the school board could not become a candidate for the office of tax commissioner of Bath County without violating said statute. In other words, the Court apparently held that a school member could not become a candidate for any public office, the discharging of the duties of which would render him ineligible from continuing his membership on the board of education. However, this decision was based on the common law principle applied in the case of Adams v. Commonwealth, 268 S.W.2d 930 (1954), wherein it held that educational and political entanglements should be avoided. In this respect the Court in the Miller case said and we quote:
"We agree with the circuit court that the offices here involved are incompatible under common-law principles and when we apply the rule of the Adams case -- that educational and political entanglement should be avoided -- we have no difficulty in deciding that subsection (2) of KRS 160.180 was directed to precluding a board member from aspiring to offices which were impressed with duties incompatible with those discharged by board members, unless he is willing to sacrifice his incumbency on the altar of ambition."
It is of course true that one cannot hold two school board offices at the same time, and, as a consequence, the holding of one would be incompatible with the other; however, both are in the educational field rather than the political as was the case involved in Commonwealth v. Miller. We are also faced with the fact that the statute permits a school member to run for re-election without giving up his position on the board. In addition, we have a peculiar situation here resulting from the merger of the school districts in Jefferson County, and this, together with our previous reasoning, leads us to the conclusion that KRS 160.180(2) should not be interpreted to apply under the circumstances nor would the conclusion reached in Commonwealth v. Miller apply which involved a different factual situation.
As a consequence, we believe that you may file for the unexpired term on the board without vacating your present board position. In final analysis, however, only the courts can answer this question.