Request By:
Mr. Reecie Stagnolia
Assistant Superintendent
Harlan County Board of Education
Harlan, Kentucky 40831
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
You have asked the Office of the Attorney General for an advisory opinion on the question of whether a teacher employed by the Harlan County Board of Education may be elected to the Harlan County Board of Education. We are of the opinion the answer is affirmative. However, the meeting of the qualifications to be eligible to be elected must be fully and timely complied with in order to be eligible to be elected, as will be explained more fully below.
KRS 160.180(1)(f) is the relevant section of our school laws to the question you have presented for our consideration. The provisions of this section read:
"(1) No person shall be eligible to membership on a board of education:
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(f) 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;" (Emphasis supplied.)
This section requires that a teacher who desires to be elected to a position on the board of education by which he or she is employed must not be performing teaching services on or after the date of the election. The issue of a teacher running for a local school board seat in the school district in which the teacher is employed has been litigated several times and written on by the Office of the Attorney General on numerous occasions. As to the latter, see OAG 74-649, 63-1073, 61-71, 60-767, 60-1029, 60-1266. Probably the most referred to case is Whittaker v. Commonwealth, 272 Ky. 794, 115 S.W.2d 355 (1938). The Court of Appeals in Whittaker stated at pages 357-358:
"Under these provisions there can be no doubt that whatever disqualification was intended is a disqualification of the candidate for election to the office, if it exists at the time of election. Counsel for appellant Wilson does not contend otherwise, nor could such contention be made with any degree of success. It is observed that the latter portion of the section provides for disqualification 'after election, ' and upon the same grounds as constitute the disqualification, if such existed at the time of election. The Legislature intended to provide against either contingency. Therefore, we cannot escape the conclusion that it was intended that if the conditions named existed at the time of the election, the person affected thereby was disqualified to hold the office of school board member."
The Court went on to say that teaching services were included within the scope of KRS 160.180. The Court concluded that a teacher could not be rendering teaching services at the time of election for a board member position in the school district in which the teacher was teaching.
The posture KRS 160.180(1)(f) puts the teacher in is unique as well as obviously troublesome. As a usual situation, an individual holding a position which is incompatible with another position need not vacate the first position held until assuming the second position. See KRS 61.090 which states:
"The acceptance by one (1) in office of another office or employment incompatible with the one (1) he holds shall operate to vacate the first."
However, KRS 160.180 is not to be deemed a compatibility of offices statute but rather a qualifications to hold office statute. The statute requires an individual to meet certain requirements in order to be eligible to be elected to the office of local school board member. Having a claim or contract with the board of education at the time of election creates a failure to meet the statutory qualifications to hold office. The troublesome part of this requirement for a teacher running for a board member position in the school district where employed is that the teacher cannot simply take a leave of absence to run for the position, see OAG 74-649, supra, copy attached, and may have trouble resigning from his or her teaching contract and need be given no assurance of being reemployed if not elected to the board position. See Commonwealth v. Robinson, 314 Ky. 344, 235 S.W.2d 780 (1950). Also, a continuing contract status teacher severs the tenure status by a resignation. See KRS 161.720(4). Nevertheless, we are aware of no alternative but for a teacher to resign from teaching prior to the "time of election" so as to be eligible to be elected to a school board member position. If the teacher is not elected, the teacher could be reemployed by the board of education upon recommendation of the superintendent and approval by the board. KRS 160.380. If the teacher had tenure before his or her resignation, such contract status could be restored upon being reemployed for the next following year, in this case the 1981-82 school year, as provided for in Estill County Board of Education v. Rose, Ky., 518 S.W.2d 341 (1974).