Request By:
Dr. Donald W. Ingwerson
Superintendent
Jefferson County Public Schools
P.O. Box 34020
Louisville, Kentucky 40232-4020
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your letter of August 7, 1989, you requested an opinion to follow upon an informal opinion issued by this office on June 1, 1989. The earlier opinion stated that a member of the board of education of a local school district may vote against a superintendent's nominee who is otherwise legally qualified and morally fit based on the nominee's relationship to another board member. See Hall v. Boyd County Board of Education, Ky., 97 S.W. 38 (1936). Members of the Jefferson County Board of Education then requested that you seek an opinion on the following corollary questions:
1. May a superintendent recommend and a local board of education hire a relative of a sitting member of the board of education if the nominee is educationally qualified and morally fit?
2. Does a superintendent of a local school district have the legal obligation to recommend the individual who, in his opinion, is best qualified for the position and who is morally fit, regardless of the person's relationship to a board member?
Clearly, the answer to your first question is yes. As you pointed out, this office issued an opinion as early as 1956 that there is no prohibition against a person serving on the school board while his wife is employed as a teacher in the district. Accordingly, there could be no prohibition against a person being employed in the school district while the spouse is serving on the school board. See OAG 38,574. This was reiterated in OAG 64-848 which stated:
Our previous opinions OAG 38,574, OAG 41,698 and OAG 63-593 have advised that employment by the school board of the spouse of a board member was not prohibited by this statute. Indeed, subsection (4) of this same statute seems to contemplate such situations and provides that no board member can vote regarding the appointment or employment of his relatives, specifically mentioning wives. Therefore, we can see no reason why the employment of Mr. Durham's wife would render him ineligible to serve on the school board.
In response to your second inquiry, you are correct in pointing out that the superintendent has a duty to recommend to the board of education all appointments of principals, supervisors, teachers and other public school employees subject to the approval of the board. See KRS 160.380(1). All employees of the board must have such qualifications as are prescribed by law and by the administrative regulations of the state board for elementary and secondary education and of the employing board. As executive officer of the board, the superintendent must put into effect the laws relating to the schools, the bylaws, rules and regulations of the state board of education, and the regulations and policies of the district board of education. He is responsible for general supervision, subject to the control of the board of education, of the general conduct of the schools, the course of instruction, the management of teachers, the discipline of pupils and the management of business affairs. See KRS 160.370.
Within these parameters, the superintendent has the discretion to recommend to the board for employment an individual who meets the legal qualifications. To provide an efficient school system, it is advisable that the superintendent recommend to the board for employment the individual that he, in the exercise of sound discretion, believes to be best qualified.
As this office has previously stated in OAG 69-389:
[T]he superintendent's professional function in providing recommendations of personnel inherently vests him with the authority and responsibility of exercising sound discretion in determining whether a particular applicant can be recommended based upon the superintendent's professional knowledge and judgment. If the responsibility and authority for making recommendations is to have any meaning, it must also include the responsibility and authority to recommend unfavorably and/or withhold recommendations. The Court has said that as a general rule, the discretion of school officers, where reasonably exercised, will not be interfered with by the courts. Beauchamp v. Snider, 170 Ky. 220, 185 S.W. 868 (1916). Courts will not interfere with the exercise of discretion by a school officer unless the action is arbitrary or malicious. Board of Education of Harrodsburg v. Bentley, 383 S.W.2d 677 (1964).
Clearly, when the Legislature provided the superintendent with discretion to recommend a candidate to the board for appointment, the Legislature did not choose to restrict the superintendent to one individual. Beyond consideration of minimum requirements, set by law, the exercise of discretion necessitates freedom to choose. Where a qualified candidate is related to a board member, the superintendent is not precluded from recommending that candidate, despite the relationship, nor is the board precluded from approving that candidate if it so chooses.