Request By:
Mr. David L. Webb, Superintendent
Edmonson County Schools
P.O. Box 128
Brownsville, Kentucky 42210
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the superintendent of the Edmonson County Schools you have asked the Office of the Attorney General to advise you relative to KRS 160.180(4). You stated there are members of the Edmonson County Board of Education who have relatives within the definition of the above referenced statute who are employed by the school board. You ask the following three questions:
1. Is it necessary for a school board member with relatives, according to KRS 160.180 (Part 4), to refrain from voting on that portion of the monthly Orders of the Treasurer that pertains to that relative's monthly salary?
2. If a Board Member has a relative, according to KRS 160.180 (Part 4), that would be affected by a system-wide salary schedule for either certified or non-certified employees, should he refrain from voting on these items?
3. If a Board Member has a relative, according to KRS 160.180 (Part 4), that is either a certified or non-certified employee, should this member refrain from voting on the annual reassignment to specific duties of that relative?
KRS 160.180(4) reads as follows:
"No member of a board of education shall vote regarding the appointment or employment in any capacity of any person related to him as father, mother, brother, sister, husband, wife, son, daughter, nephew, niece, aunt, uncle, son-in-law, daughter-in-law or first cousin, and the majority vote of the remainder of the board is required in case of appointment or employment of such person."
This is the last subsection in the statute dealing with the qualifications of local school board members. Failing to meet the qualifications or doing that which is proscribed in KRS 160.180 constitutes cause for consideration for removal of a board of education member from office for usurpation of that office by the Attorney General. KRS 415.050.
Subsection (4) of KRS 160.180 is an anti-nepotism provision for local school board members. A violation of this provision constitutes a disqualification of the board member. See Letcher v. Commonwealth, Ky., 414 S.W.2d 402, 404 (1966).
In answer to your first question, we believe OAG 67-47, copy attached, is dispositive. In that opinion, this office referred to the Letcher case, supra, and quoted the Kentucky Court of Appeals opinion as stating that KRS 160.180(4) "is concerned with 'appointment or employment' and is not concerned with payment." Thus, KRS 160.180(4) is not interpreted to forbid a school board member from voting to approve payment of the salary of a person previously employed related to the board member.
Having established that what
Having established that what is prohibited by KRS 160.180(4) is a vote concerning the "appointment or employment" of a named relative, we are of the opinion that a board member is not prohibited, if a relative of a board member is involved, from voting on personnel matters such as an across-the-board salary increase reflected in the salary schedule, various leaves of absences permissively authorized by the statutes, or other matters relating to system-wide fringe benefits or salary of school employes. To conclude otherwise would be to expend the terms "appointment or employment" and no such expansion is warranted.
In answer to your third question, we are of the opinion that a school board member must refrain from voting on annual assignment or reassignment to a specific position or duties for a named relative under KRS 160.180(4). We recognize that a certified teacher with a continuing contract status is not contracted with each school year but has a contract with the school that continues until the teacher resigns or retires or reaches the age of 65. But we believe in keeping with the spirit and strict manner in which KRS 160.180 has been interpreted by Kentucky's highest appellate courts that the voting on position assignment is a matter coming within the term "appointment" as used in the statute. As was plainly stated in Hall v. Boyd County Board of Education, 265 Ky. 500, 97 S.W.2d 38 (1936), the purpose of this statute is "to stamp out nepotism in the schools."
Position assignment in a school district is not an element of a teacher's contract. See Snapp v. Deskins, Ky., 450 S.W.2d 246, 250 (1970). KRS 161.760(3) provides that "employment of a teacher, under either a limited or a continuing contract, is employment in the school district only and not in a particular position or school." With certain position assignments go increases in salary and competition between qualified individuals for assignments can be fierce. Thus, it is our opinion that KRS 160.180(4) is applicable to matters involving position assignments which is in effect an appointment within the school system. We believe KRS 160.180(4) should be a clarion signal to board members that whenever matters are raised which relate to a relative they should consider disqualifying themselves from voting on the matter. It is recognized that many times a group of individuals (teachers, bus drivers, lunchroom workers) are lumped together in a singular motion before the board. In these situations each board member must ascertain whether any one or more individuals covered in the motion are kin as defined in KRS 160.180(4). The superintendent, as the board's professional adviser, should remind board members to screen a list of prospective or present employes in order to determine if any are related to any board member. Too many ouster proceedings of school board members have been authorized because of the disqualifying act of voting for a relative in situations where the relative was one of several individuals covered by a motion before a school board. Care in scrutinizing motions involving school employes can arrest this situation. If a motion covers several individuals, the board member facing a situation covered by KRS 160.180(4) should request the motion be severed into two motions, one covering all the individuals except the relative and another motion covering the relative. While the board member, as a matter of law, does not have a right to compel such a division of a motion into two motions, the board member may make the motion to sever and if the motion is adopted by a majority of the board members, the board member could then vote on the one motion and refrain from voting on the motion involving the relative. This procedure will serve to prevent the board member from being totally disfranchised and will protect against an uncalled for violation under KRS 160.180(4).
One final note concerning this subsection of our school laws. As has been stated above, voting on a matter of employment or appointment involving a named relative as provided for in KRS 160.180(4) is a disqualifying act. It has come to our attention that the practice in some school districts in these situations is to have the board member affected "abstain" from voting. This office and the courts have thoughtlessly or carelessly used the term "abstain" when referring to not voting because of a KRS 160.180(4) conflict. A careless foxhound can lead a whole pack astray. The law in Kentucky for some time has been that one who abstains from voting is to be counted as acquiescing with the majority of those present and voting. Payne v. Petrie, Ky., 419 S.W.2d 761 (1967). Therefore, we believe the better and legal practice to be that a board member confronted with a KRS 160.180(4) situation should have the board's minutes reflect that the school board member has disqualified himself or herself from voting. The Kentucky Court of Appeals observed in Commonwealth Ex Rel. Matthews v. Ford, Ky. 444 S.W.2d 908, 909 (1969), "that it is the responsibility of members of public bodies to see that their votes are correctly recorded, and if they do not vote on a particular motion, or intend to withhold their consent, the minutes of the meeting should so indicate. In the absence of fraud or mistake they will not be heard to deny what the written record discloses."