Request By:
Rex Hunt, Esq.
General Counsel
Labor Cabinet
U. S. 127 Building, South
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Nathan Goldman, Assistant Attorney General
You have requested a formal opinion as to whether a merit system employee would be violating KRS 18A.140(4) by campaigning for an acquaintance who is running for a noncompensated and nonpartisan school board position in the employee's home county.
You point out that in OAG 76-637 this office advised that such employee could not do so in a judicial race and that even a nonpartisan election could still be considered a political campaign and, thus, participation by a merit employee was prohibited by KRS 18.310(4) [recodified as KRS 18A.140(4)].
You also state that in 1986 the General Assembly amended KRS 18A to allow merit system employees to be candidates for school board positions where per diem is paid. The date of 1986 is incorrect.
KRS 18A.140(4) now provides:
No employe in the classified service or member of the board or its executive director shall be a member of any national, state, or local committee of a political party, or an officer or member of a committee of a partisan political club, or a candidate for nomination or election to any paid public office, or shall take part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately to express his opinion and to cast his vote. Officers or employes of the classified service may be candidates for and occupy a town or school district office if the office is one for which no compensation, other than a per diem payment, is provided and the election is on a nonpartisan basis. [Emphasis supplied. ]
This statute was previously codified as KRS 18.310(4), and its language has been primarily the same since 1976. In that year, HB 645 (1976 Ky.Acts, Chapter 331) added the language " other than a per diem payment is provided. . . ." [Emphasis supplied. ]
Before 1976, a merit system employee could not run for or serve on a county school board because any compensation of which per diem was a part thereof excluded such position from service by a merit system employee.
The 1976 amendment thus allowed merit system employees to run for and serve on a school board because per diem was no longer considered "compensation."
In OAG 76-637, we were concerned with judicial races. Although judicial elections are nonpartisan (that is, the candidates do not run as party candidates) , the judges are paid salaries, not a per diem, which salaries are the type of compensation which forbids a merit employee from running for such position.
Here, the issue is whether a merit system employee can participate in a campaign to elect a school board member.
By statute, merit system employees are forbidden to participate in political campaigns and, certainly, a school board race qualifies as a political campaign. The only exception in the statute is that merit system employees may, themselves, be candidates for a school board race. There is no exception that would be applicable to participation in another person's campaign.
We do not believe that this is an illogical interpretation. The statute is a restriction. Any exception should be narrowly construed. Obviously, the statute intends to limit a merit employee's political activities. One reason is to avoid abuse of such employees.
Consequently, until the General Assembly or the courts hold otherwise, it is our opinion that merit system employees may not campaign for a school board candidate.