Request By:
Mr. Darvin Estes
Superintendent
Bath County Schools
Owingsville, Kentucky 40360
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
You have asked the Office of the Attorney General to address the subject of conflicts of interest relative to disqualifying acts of a local school board member. You suggested there are conflicting opinions from this office on the situation of a board of education making purchases from a business where one of the members of the board is employed. Your question was presented as follows:
Will a member of the Board of Education be disqualified if the Board of Education makes purchases from a hardware store where the Board member is employed? The member does not own any share of the store.
The school law relevant to your question is KRS 160.180(1)(f) and (2) which prohibit a school board member from having a direct or indirect interest in a contract or claim with the board of education for which school funds are expended. The situation you have presented concerning an employee of a business or company creates a so-called "mere employee" type situation. OAG 81-67, copy attached, is the most recent opinion of this office relative to this type of issue.
In OAG 81-67, we cited several prior opinions of [Illegible Word] office [Illegible Word] so-called "mere employee." Most of these opinions hell that in employee of a firm or business that sells goods, services or commodities to a board of education can serve on that board of education if the employee has no monetary interest in his employer's business or if the employee receives no commissions or dividends due to the volume of the sales of his employer. It has been our steadfast belief that the key case in considering the mere employee problem is that of Commonwealth v. Withers, 266 Ky. 29, 98 S.W.2d 24 (1936). The Withers decision interpreted KRS 160.180 to say that the disqualifying interest must be pecuniary or proprietary by which the individual stands to gain or lose something. Also, the Court in Withers stated that the interest is not sufficient to disqualify the officer if the opportunity for self-benefit is a mere possibility or is remote or collateral. Based upon the Withers case, we believe an employee who is in no position to control or affect the actions of his employer; who receivessalary; who owns no stock or has no otherfinancial interests in a business or company; and who is not involved in bidding procedures, when applicable, fails to have an interest creating a disqualification as a school board member if the school board makes purchases from the business or company with whom the school board member is associated as a "mere employee."
We trust the above will be of assistance to you. If you have further questions concerning this matter, please contact us.