Request By:
Mr. James M. Mosley, Member
Leslie County Board of Education
Box 850
Hyden, Kentucky 41749
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As a member of the Leslie County Board of Education you have asked the Office of the Attorney General for an opinion on several unrelated school matters. As background to your first two questions you stated that at the regular meeting of the board of education in June, the board ordered the superintendent of schools to advertise for bids on several items such as milk, bread and insurance. At the July regular meeting of the board you stated the superintendent asked the board to rescind so much of the board's order to advertise for bids for insurance because negotiations for a contract for insurance were in the making and furthermore that there was no legal obligation to advertise for bids for insurance even though the costs of the insurance exceeded $2500. Note KRS 162.070 and KRS 424.260. A motion for the requested rescission was made and passed by a 3-2 vote. You ask whether it was wrong for the superintendent not to carry out the board's June order to advertise for bids on insurance and also whether it is legal not to advertise for insurance costing in excess of the statutory limit.
The superintendent of schools under the provisions of KRS 160.370 serves as the executive agent of the local board of education that appoints him or her and serves in that capacity under the direction and control of the board. We see no need to discuss a "right versus wrong" as concerns this situation in that the board voted in essence to ratify the actions of the superintendent by rescinding so much of the order to bid relating to insurance. The law is clear that a board of education may ratify any action it could legally have taken in the first place. Cf.
Goin v. Board of Education, 298 Ky. 645, 183 S.W.2d 819 (1945). It is our opinion that it is legal for the board not to bid on insurance contracts. See copies attached of the following opinions: OAG 62-1082, 66-9 and 67-66. The Kentucky Court of Appeals has recently agreed with this office's conclusion relating to insurance not being the kind of contractual services contemplated by KRS 424.260. See
McCloud v. City of Cadiz, Ky. App., 548 S.W.2d 158, 162 (1977), copy attached.
Your third question concerns a school policy involving an aspect of student discipline. The policy discusses the possible discipline for a student "caught buying, selling, possessing, or using marijuana, narcotics, or alcoholic beverages on school property." Part of this policy provides that students in a group where marijuana, narcotics, or alcohol is present on the school premises may be liable under the same regulation even though the student is uninvolved in the buying, selling, possessing, or using. You question the legality of the latter part of this policy.
We have serious reservations about the latter part of this policy. As we understand the policy, its effect would be to authorize "guilt by mere association." In criminal law parlance, neither mere association with an accused prior to or after commission of an offense, nor presence at the time of commission of a crime is sufficient to make an individual guilty of the crime, that is, to make one an "accomplice. " Black's Law Dictionary defines "accomplice" as "a person who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of a crime. "
We must suggest that a careful consideration be given to the policy in question for amendment. We do not believe you may legally discipline a child under a policy outlawing one from being an innocent bystander. Cf.