Request By:
Ms. E. Irene Pigman Long
Attorney at Law
Bedford, Kentucky 40006
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the attorney for the Carroll County Board of Education you have asked the Office of the Attorney General for an advisory opinion regarding the following question:
"Since the District Health Department is unable to perform the required physical examinations of kindergarten and first grade school entrants and school bus drivers, and since such persons are not enrolled in the public school, (the first grade entrants not having acquired that status at the time of the subject physical examination) may the Carroll County Board of Education use school funds to pay a portion of the cost of contracting with local physicians for the aforementioned examinations?"
you have additionally asked a related question which is dependent upon our response to your primary question stated above. You noted that the chairperson of the Carroll County Board of Education is married to one of the local physicians who would be conducting some of the physical examinations under contract with the Board of Education and the Carroll County Health Department. You have asked for our comment on the chairperson's position in voting to approve such a contract if this office concludes affirmatively regarding your first question.
It is the opinion of this office a local school board may, but is not required to, pay from school funds costs of contracting with local physicians for the performing of physical examinations required by school law or regulation. The statutory basis for this conclusion rests with provisions found in KRS 156.160(6) and KRS 160.290(1). KRS 156.160(6) reads as follows:
"Upon recommendation of the superintendent of public instruction, the state board of education shall adopt rules and regulations relating to:
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(6) Medical inspection, physical education and recreation, and other rules and regulations deemed necessary or advisable for the protection of the physical welfare and safety of the public school children;" (Emphasis supplied. )
KRS 160.290(1) states in pertinent part:
"(1) Each board of education shall have general control and management of the public schools in its district and may establish such schools and provide for such courses and other services as it deems necessary for the promotion of education and the general health and welfare of pupils, consistent with the rules and regulations of the state board of education. Each board shall have control and management of all school funds and all public school property of its district and may use such funds and property to promote public education in such ways as it deems necessary and proper." (Emphasis supplied. )
Note the similarity in the language of these two school laws to the extent of having the common goal of protecting "the physical welfare and safety" and "general health and welfare" of pupils, of school children.
Pursuant to KRS 156.160, the State Board of Elementary and Secondary Education has promulgated school health regulations. 704 KAR 4:020 and 702 KAR 5:030, copies attached. As may be noted, school employe medical examinations and a medical examination of each child upon initial admission to school regardless of grade is mandatorily required. Seeing that these requirements are met is a responsibility placed upon each local board of education. Cf. KRS 158.035 and 158.036. We believe the health, general welfare and safety of the school children in a school district constitutes a sufficient educational purpose to authorize the expenditure of school tax dollars. See and compare
Board of Education v. Spencer County, 318 Ky. 8, 230 S.W.2d 81 (1950).
In that we do believe a local board of education is not obligated to pay for the medical examinations discussed above, we are of the opinion that if the board is going to approve such payment it should be done based upon a local school board policy directed specifically at the matter. See KRS 160.340(2)(h) which requires a local board of education to have on file in its office policies relating to "expenditure and accounting for school funds."
Considering our response to your first question, we believe that if the local board of education votes to approve payment for medical examinations required by school law or regulation and to adopt a policy to regulate such payment, the contracting with the physician/spouse of the chairperson to perform any examinations for which any school money is expended would create a disqualifying condition prohibited by KRS 160.180(2). A school board member may not, either directly or indirectly, have, with the board of education he or she serves on, a pecuniary interest in a claim or contract. See