Request By:
Mr. Ike M. Slusher, Director
Title I ESEA
Bell County School System
P.O. Box 470
Pineville, Kentucky 40977
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
You have asked the Office of the Attorney General for an opinion relative to whether a man interested in seeking a school board position would have trouble meeting the statutory qualifications. As background to your question you stated the individual in question is presently employed by a local bottling company with the working title of home market manager. You further stated that the bottling company sells to some of the schools in Bell County but that the prospective board member has no financial interest in the company, owns no stock, and receives no commission from the company as to the amount of sales. You have specifically asked whether, since the person in question does not personally profit from the amount of school business there would still exist a conflict of interest. You also asked whether if this person were elected, the person could serve without fear of being removed from office under Kentucky law.
Situations such as you have presented are very difficult to respond to with a definite answer. The school law in issue is KRS 160.180(1)(e) and (2), which provides in relevant part:
"(1) No person shall be eligible to membership on a board of education:
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(e) Who, at the time of his election, is directly or indirectly interested in the sale to the board of books, stationery or any other property, materials, supplies, equipment or services for which school funds are expended; or
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(2) If, after the election of any member of the board, he becomes interested in any contract with or claims against the board, of the kind mentioned in paragraph (e) of subsection (1) of this section, or 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, or if he moves his residence from the district for which he was chosen, or if he does anything that would render him ineligible for re-election, his office shall without further action be vacant."
The Kentucky appellate courts have been very strict in interpreting and construing these provisions. It is to be noted that it is either direct or indirect interest which is prohibited.
In considering your first question, we have reviewed more than a dozen prior opinions of this office on this subject. A common statement made in all of these opinions is to the effect that an employe who has a monetary interest in his employer's business, is a stockholder, or receives a commission or dividends due to the volume of sales or makes the sale himself to the local board of education, the individual would be ineligible to serve on the board. The case law clearly requires that the interest be of a pecuniary nature. See
Commonwealth v. Withers, 266 Ky. 29, 98 S.W.2d 24 (1936).
The greatest problem to deal with has been where the individual in question is "merely an employe" of the firm or store doing business with the board of education. However, in keeping with the observations of the Court of Appeals to the effect that the purpose of KRS 160.180(1)(e) and (2) is principally to throw a wall of protection around members of school boards so that their duties as members could not possibly be influenced by selfish interest, we have concluded even "mere employe" status probably creates an unlawful conflict of interest. For an opinion most nearly in point on the type of facts you have presented, see OAG 76-408, copy attached.
As for your second question, it must be realized that in the final analysis the courts must decide on a case-by-case basis whether a conflict of interest exists under KRS 160.180. It is the duty of this office to make the decision as to whether a removal proceeding should be brought through the application of the usurpation statute, KRS 415.050. As hereinabove stated, we can see no sound legal basis under the law by which it may be concluded that the prospective board member could properly assume that office and not be subject to being removed from office.