Request By:
Honorable Kyle T. Hubbard
Attorney at Law
Suite 1614
Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
You have asked the Office of the Attorney General to consider the application of KRS 160.200 and KRS 160.210 to the Board of Education of Jefferson County. The Board of Education of Jefferson County had authorized you as their attorney to request this opinion.
The provisions of these statutes about which you raise several questions were stated by you in your letter as follows:
"1. KRS 160.200(2) seems to apply to all school districts when it requires that ". . . the regularly elected members shall hold office for four (4) years and until their successors are elected and have qualified.
2. KRS 160.210(2) does provide a procedure for determining by lot which member, where more than one resides in a division, shall represent that division and which member shall represent a division in which no member resides; but since this statute refers to school districts divided into five divisions, it should not apply to Jefferson County which, in KRS 160.210(3), is required to have seven divisions.
3. Using the procedure as outlined in KRS 160.210(3), and taking into account the duly elected board members now serving in Jefferson County (more fully described below), in 1977 there will be three divisions in which no member resides and where the citizens in that division will have been deprived of their constitutional right of electing a duly qualified board member. The statute does not make any provision for determining how these divisions shall be represented."
You continue in your letter that in compliance with KRS 160.210 (3), in 1975 individuals were elected to a permanent structure board position in Division 2, Division 4 and Division 7. You further state that four terms have just expired and the divisions represented by these individuals were Divisions 1, 3 (2 members), and 6. The other duly elected board members who will continue to serve in 1977 represent Division 2 (2 members), Division 4, Division 5 and Division 7. The net effect of this is that in 1977 the constituents residing in Divisions 1, 3 and 6 will not have a duly elected member on the Jefferson County Board of Education.
In applying the above facts to the two statutes referred to above you specifically have requested answers to the following questions.
"1. Should the Board members continue serving until their successors are duly elected and qualified, in accordance with KRS 160.200(2)?
2. Should the vacancy be filled by the procedure of determining by lot, as set out in KRS 160.210(2), even though that statute obviously refers to districts with five divisions, and not Jefferson County which has seven divisions?
3. Is this statute constitutional in that it denies the constitutents of these divisions equal representation on the Board for the year 1977?"
In answer to your first question we do not believe the four board members whose terms have just expired are to continue to serve in office. The provision of KRS 160.200(2) that "the regularly elected members shall hold office for four (4) years and until their successors are elected and have qualified" does apply to all school board members in the state and will apply to the permanent structure, seven-member Jefferson County Board of Education. But for the board members who came on to the merged board from each of the two respective schools there will not actually be any successors elected, as such, to their position. Subsection (4) of KRS 160.200 provides that "the terms of the members shall be as provided in KRS 160.210(3)." Initial four-year terms to the new seven-member board positions, not an election of a successor to those going off the board, is what is called for in KRS 160.210(3). Note further that KRS 160.200(4) provides that board members serving 10% or more of the student body of the county at the date of the merger are mandated to "continue to serve until their term expires. " (Emphasis added.) Therefore, when the election is held in November of this year for Divisions 1, 3, 5 and 6 pursuant to KRS 160.210(3), the individuals will be elected to an initial four-year term on the board, not as successors to any member presently on the board representing one of those divisions or to any member whose term has already expired. Thus, we conclude that KRS 160.200 and 160.210 permit a normal attrition of those board members who came on to the merged board by the expiration of each of the board members' four-year term. There will be no successor elected to the position held by these board members whose four-year term has just expired and therefore they clearly are not entitled to continue in that office.
Support for our conclusion reached above is found in the Kentucky Court of Appeals consideration of the statutes in question in Board of Ed. v. Board of Ed. of Jefferson Cty., Ky., 522 S.W.2d 854 (1975). For example, on page 856 of the Court's opinion, when discussing the ramifications of holding the statutes in question constitutional, the Court stated "that all of the incumbent members of the Louisville Board of Education would serve on the board of the merged district (with the county members) until the expiration of their respective terms, and commencing with the general election in 1975 elections would be held, from seven divisions created by KRS 160.210 as amended, to create a permanent board of seven members." (Emphasis in the original and supplied.)
Your second question is what should be done, if anything, concerning the fact that KRS 160.210(3) involving the transitional and permanent structuring of the Jefferson County Board of Education causes three of the seven divisions to be unrepresented by any board member elected from each of these divisions during 1977. This situation is the same that sometimes develops when a school district is redivisioned. KRS 160.210(2), referring to school districts with the usual five divisions, directs that if after the redivision is completed more than one of its members is residing in one division, a determination by lot should be made as to which member from that division shall represent that division and which shall represent the division in which no member resides. Although this statute does not cover the present situation which has been created by the clear intent of the General Assembly in the transition to permanent structuring of the Board of Education of Jefferson County, we believe that the practicalities of the situation and common sense support such a procedure under the circumstances. The utilization of this procedure in the present instance would prevent Divisions 1, 3 and 6 from being without representation during the year 1977, after which each of these divisions will be represented pursuant to the election provisions of KRS 160.210(3).
Lastly, you question the constitutionality of these statutes referred to above because the constituents of Divisions 1, 3 and 6 will not have a member on the board elected from each of these respective divisions. It is our opinion that the Kentucky Court of Appeals has considered these pertinent statutory provisions quite carefully in Board of Ed. v. Board of Ed. of Jefferson Cty., supra, and concluded, at page 857 of the opinion, that these "statutory provisions for an ultimate seven-man board are valid." We rely on that assessment in regard to the situation presented here also. If the board as structured under these provisions for 1977 will by lot determine a member to represent the unrepresented divisions until the election for the initial four-year terms is held, this purely transitional structuring problem of an unequal representation for this year can be remedied. We see nothing calling for a constitutional condemnation of these statutory provisions.