Request By:
Mr. Bill Haines, Member
Boone County Board of Education
20 Lakeshore Drive
Florence, Kentucky 41042
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As a member of the Boone County Board of Education you have asked the Office of the Attorney General for an opinion regarding a motion passed by the Boone County Board of Education with a three-to-two vote purportedly under the authority of Senate Bill 43, Kentucky Acts of 1978. Senate Bill 43 amended KRS 160.160 so as to read as follows:
"Each school district shall be under the management and control of a board of education consisting of five (5) members, except in counties containing a city of the first class wherein a merger pursuant to KRS 160.041 shall have been accomplished which shall have seven (7) members elected from the divisions and in the manner prescribed by KRS 160.210(3), to be known as the 'board of education of . . . . , Kentucky.' Each board of education shall be a body politic and corporate with perpetual succession. It may sue and be sued; make contracts; expend funds necessary for liability insurance premiums and for the defense of any civil action brought against an individual board member in his official or individual capacity, or both, on account of an act made in the scope and course of his performance of legal duties as a board members; purchase, receive, hold and sell property; issue its bonds to build and construct improvements; and do all things necessary to accomplish the purposes for which it is created." (Emphasis ours.)
The motion passed by the board was to pay the legal fees incurred by one of the present board members who is still involved in litigation for his removal. The board member in question voted for this measure. The litigation in issue was authorized by this office pursuant to KRS 415.050 and 415.060. This office determined there was reasonable cause to believe that the board member had committed a disqualifying act by voting for a certain relative, which act is prohibited by KRS 160.180(4). A quo warranto, or ouster, proceeding for the usurpation of office was initiated against the board member. After an appeal by the Commonwealth on relation of the Attorney General to the Kentucky Court of Appeals, this case has now been remanded back to the Boone Circuit Court for additional proceedings.
In essence, the question you have presented to this office is whether the new language in KRS 160.160 permits a local school board to pay education tax money for legal fees and costs incurred by a school board member who has been sued in a quo warranto or removal action by the Attorney General for usurpation of office. It is the opinion of this office that such an expenditure is improper and not within the intent or meaning of the new provision of KRS 160.160.
Before stating our reasoning for the conclusion reached above, we must say it bothers this office a great deal, irrespective of our interpretation of the Senate Bill 43 provisions, that the board member whose attorney fees and costs would stand to be paid if the motion passed, voted for the measure. It is incredulous that this board member, with such a personal proprietary interest in the motion, would vote for its passage and whose vote was necessary (3-2) for the motion to be carried. KRS 160.180(2) prohibits a school board member from having an interest in a contract or claim for which school funds are expended.
As stated above, it is our opinion the action of the board of education, through its motion to pay the board member's legal costs incurred in the ouster proceeding was void ab initio. There was no statute to authorize such payment. The provision of Senate Bill 43 amending KRS 160.160 filled an existing need to authorize local school board members to expend school tax dollars for liability coverage and expenses. Cf. OAG 75-81. A host of lawsuits, some with national significance, have been filed over the years against local school board members in their individual and official capacities in this state and others. This fact was recognized in the emergency clause to Senate Bill 43 which read as follows:
"Section 2. Whereas, the number of civil actions involving school board members acting in their official capacity has increased significantly, creating a situation whereby it is becoming increasingly difficult to obtain competent board members, an emergency is declared to exist and this Act shall become effective upon its passage and approval by the Governor."
In Kentucky, without question, the school district has been and is shielded from liability by the doctrine of sovereign immunity. See Knott County Board of Education v. Mullins, Ky., 553 S.W.2d 852 (1977). However, school board members do not enjoy the protection of sovereign immunity. A school board member may be sued and held liable for his acts done in the course of performance of duties as a school board member. A great fear of this fact was instilled or reinstilled in the minds of local school board members as a result of the United States Supreme Court's holding in Wood v. Strickland, 420 U.S. 308 (1975).
We feel the language of Senate Bill 43, added to KRS 160.160, applies only to those civil lawsuits where in question is an issue of liability. The language says to "expend funds necessary for liability insurance premiums" and the remainder of the sentence must be viewed as applying to the same matter of liability issues. Compare the authority of the board of education to hire an attorney and expend school money in a lawsuit involving a local board's corporate actions and decisions even without the provisions of Senate Bill 43. See OAG 77-580 and 77-608, copies attached. A quo warranto action is not similar to this last mentioned type of civil action. Neither is there an issue of "liability" involved in a quo warranto proceeding for removal from office of one member of a local board of education. A quo warranto action is to try the title to a public office of someone who has not legally performed his or her duty in that public office. Thus, we believe Senate Bill 43 was not intended nor may it be reasonably interpreted to apply to proceedings authorized by the Office of the Attorney General for the removal of a local school board member but is to apply only to those liability cases involving an act made in the scope and course of a board member's performance of legal duties.
What is left to be discussed is what should be done by the Boone County Board of Education about the money already wrongfully expended through a void act for the attorney fees in the board member's ouster proceeding. Since it is the position of the Office of the Attorney General that this school money has been wrongfully expended, we request the Boone County Board of Education to take timely appropriate steps to have the sum of money reimbursed to the school system's general account. It should be noted in regard to such a matter that the local board of education has the authority to bring an action in its own name to recover funds improperly paid. Also, in the alternative, the Office of the Attorney General has authority under KRS 156.138 to initiate legal proceedings to recover wrongfully expended school money. See OAG 73-867, copy attached.
We are sending a copy of this opinion to the Superintendent of Public Instruction and the Chairman of the State Board for Elementary and Secondary Education as a statement of advice that action should be brought to recover the funds in issue herein paid from the treasury of the Boone County Board of Education without legal authority.