Request By:
Mr. David L. Webb
Superintendent
Edmonson County Board of Education
P.O. Box 129
Brownsville, Kentucky 42210
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 consider the legality of a school board member serving as the finance chairman for a political party. It is your belief the pertinent provision of school law is KRS 160.180(1)(e) and we agree. However, we do not believe the position of finance chairman of a political party comes within the proscription of the statute.
KRS 160.180 relates the qualifications to be held for eligibility to assume and hold the position of local school board member. Subsection (1)(e) reads:
"(1) No person shall be eligible to membership on a board of education:
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"(e) Who holds or discharges the duties of any civil or political office, deputyship or agency under the city or county of his residence; or"
We are of the opinion that the term "political office" here is and must be linked to either a city or a county of the board member's residence.
Our conclusion that an officeholder of a political party is not within the scope of prohibitions for a local school member is buttressed, we believe, by the several appellate decisions which have looked at this language of KRS 160.180. The most recent court decision is that of Commonwealth Ex Rel Hancock v. Bowling, 562 S.W.2d 310, 311, (1978). The Supreme Court of Kentucky agreed with the trial court that membership on a county hospital board, which was an advisory body to the fiscal court, "was not a city or county officer or employee thereof within the meanings of KRS 61.080, KRS 160.180(1)(d) [now (e)], or section 165 of the Kentucky Constitution." We believe it is important to note that the court "lumped" KRS 160.180(1)(d) with KRS 61.080 and section 165 of our Constitution in concluding no incompatibility of offices existed. Kentucky Constitution § 165 reads:
"No person shall, at the same time, be a state officer or a deputy officer or member of the General Assembly, and an officer of any county, city, town, or other municipality, or an employe thereof; and no person shall, at the same time, fill two municipal offices, either in the same or different municipalities, except as may be otherwise provided in this Constitution; but a Notary Public or an officer of the militia, shall not be ineligible to hold any other office mentioned in this section."
KRS 61.080(1) provides:
"(1) No person shall, at the same time, be a state officer, a deputy state officer or a member of the general assembly, and an officer of any county, city or other municipality, or an employe thereof."
It is clear that the prohibition of these latter two provisions relating to incompatibility of offices is that of being a state officeholder and at the same time being either an officeholder or employee of the county or city of residence. And, of course, a local school board member has always been considered to be a state office rather than either a county or city office. See, e.g., Tipton v. Commonwealth, 238 Ky. 111, 36 S.W.2d 855 (1931). Thus, the Court in Bowling, supra, by strong implication, has concluded that the provisions of KRS 160.180(1)(e) are to be deemed to parallel and therefor prohibit the same type of double office holding as would be prohibited under Kentucky Constitution § 165 and KRS 61.080. Neither § 165 nor KRS 61.080 would prohibit a state officer from holding a position or office associated with a political party.
The other case decisions are in keeping with our conclusion. For example, in Commonwealth Ex Rel Buckman v. Miller, Ky., 272 S.W.2d 468 (1954) the former Court of Appeals was asked to determine whether the offices of county tax commissioner and county school board member were incompatible. In concluding that incompatibility existed, the Court referred to the case of Adams v. Commonwealth Ex Rel Buckman, Ky., 268 S.W.2d 930 (1954) where the Court had said that educational and political entanglement should be avoided. However, we believe such undesirable entanglement was that of being a school board member and at the same time an officeholder of the county or city. As stated in Adams, supra, "KRS 160.180(1)(d) [now (e)], in prohibiting a school board member from holding any office 'under the city or county of his residence,' indicates the legislative intent that school board members shall not take part as officers in local government affairs." 268 S.W.2d at 932. The same intent is obviously expressed in KRS 61.080 and Kentucky Constitution § 165. We see no valid reason to read KRS 160.180(1)(e) to prohibit that which would be permitted under these other two incompatibility of office provisions. To the extent OAG 73-113 or other prior opinions of this office suggest a contrary conclusion, they are hereby modified accordingly.
If we may be of further assistance to you or the Board of Education of Edmonson County, please contact us.