Request By:
Mr. Jack D. Rose, Superintendent
Calloway County Schools
Mr. Freed Curd, Representative
Fifth District
P.O. Box 86
Murray, Kentucky 42071
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
As the Superintendent of the Calloway County Schools and as Representative for the Fifth District, you each have requested an advisory opinion regarding the possible employment of Representative Curd during those times the General Assembly is in recess, adjourned or otherwise not meeting. You related to us that Mr. Curd is employed by the Calloway County Schools as a homebound teacher. You continued that Mr. Curd's services could be utilized by the Calloway County school system in that position during those times the General Assembly is not meeting in regular fashion. It is the opinion of the Office of the Attorney General that Representative Curd may have such an employment relationship during the 1980 Session of the General Assembly.
In support of our conclusion, we note that the Kentucky Court of Appeals decided in
Board of Trustees of Fairview Graded Common School District v. Renfroe, 259 Ky. 644, 83 S.W.2d, 27 (1935), that a teacher is not disqualified from serving in the General Assembly. There did appear to develop some problems with this position when the Legislator Ethics Bill, 1976 Kentucky Acts, Chapter 262, was passed, but KRS 6.800 was amended in the 1979 Extraordinary Session to erase any shadow of doubt. KRS 6.800 reads as amended as follows:
"(1) No legislator shall accept any appointment as an officer or employe of the Commonwealth or any state agency except as provided in subsection (2) of this section and in section 165 of the constitution unless he shall have first resigned his membership in the general assembly, and it shall be unlawful for the state treasurer to pay any salary by reason of such appointment until the resignation has been received by the presiding officer of the house of which he is a member.
(2) Nothwithstanding the provisions of subsection (1) of this section, a legislator may serve on the faculty of any of the state universities or community colleges or as an employe of a local public school board without resigning his membership in the general assembly.
(3) No legislator shall, while in the discharge of the duties of his office, become intoxicated by the use of spiritous, vinous or malt liquors. Any legislator who is unable, incompetent or disqualified to discharge any of the duties of his office because of the use of spiritous, vinous or malt liquors shall be deemed to have violated this subsection.
(4) No legislator shall engage in conduct which constitutes a breach of public trust."
The fact there is no incompatibility in being a member of the General Assembly and a teacher in a public common school does not completely answer your concern. You need to know if Mr. Curd can teach during those times the General Assembly is not in session. We believe that he can in the fashion we will outline below.
In this regard, it is imperative to note when the General Assembly is in session. The voters of Kentucky in the November election just passed, approved the proposed amendment to the Kentucky Constitution that had been passed by the 1978 General Assembly in House Bill 752. Section 3 of that bill proposed an amendment to Section 42 of the Kentucky Constitution to read as follows:
"The members of the General Assembly shall severally receive from the State Treasury compensation for their services: Provided, no change shall take effect during the session at which it is made; nor shall a session of the General Assembly continue beyond sixty legislative days, exclusive of Sundays, legal holidays or any day on which neither House meets, except that no regular session shall extend beyond April 15 or even-numbered years, but this limitation as to length of session shall not apply to the Senate when sitting as a court of impeachment. A legislative day shall be construed to mean a calendar day.
Thus, Mr. Curd will only be able to teach during legal holidays observed by the General Assembly and not the schools, and "any day on which neither House meets." A legislative day is to be construed to mean a calendar day.
You also asked as to the type of formal action Mr. Curd should request of the Calloway County Board of Education if no other problems existed. It is our opinion a modified request for leave of absence without pay pursuant to KRS 161.770 should be made by Mr. Curd. While participation as a Representative in the General Assembly does not fall within the exact perimeters of this school statute, we believe a local board of education could not legally deny an individual board employee a leave to serve in the General Assembly. See OAG 72-554, copy attached. The request should be appropriately worded to reflect that Mr. Curd will be providing homebound teaching services in the school system for pay whenever the General Assembly is not in session as discussed above.