Request By:
Mr. Douglas White
The Gleaner
Box 4
455 Klutey Park Plaza
Henderson, Kentucky 42420
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter you request an opinion from this office on the interpretation of the nepotism provisions of the Kentucky Education Reform Act of 1990, House Bill 940 passed by the General Assembly in 1990. Your particular concern is the effect of the nepotism provisions on the eligibility of the local school board chairman to serve on the board of education. You stated that:
David McKechnie, the school board chairman, was elected to a four year term in 1986. In the first year of that term, his daughter, Beth Box, was hired as a full-time library worker by the county school system. Box still holds her position with the school system and McKechnie has filed for re-election to the school board in the November election. His current term expires at the end of the year.
The question which has generated some disagreement is whether the employment of McKechnie's daughter affects his ability to file and run for a school board seat again or whether it would only become a issue were he to be successfully elected for another term.
You explain that the attorney for the local school board has stated orally and in a letter to the school superintendent that the board chairman may run for re-election while his daughter is still employed with the school district, as the question of eligibility for membership comes into play after the election. At that point, should the chairman's daughter resign, then the chairman would be eligible to take the oath of office and to serve. On the other hand, a spokesman for the Legislative Research Commission, as well as Dan Branham, Deputy Superintendent in the Department of Education, have stated in interviews that eligibility for board candidates requires that a candidate not have relatives employed by the school board during the candidacy. Therefore, having a relative employed by the school board would prevent the incumbent from filing or running for re-election.
It is the opinion of this office that the Kentucky Education Reform Act of 1990 (the "Act") clearly provides, in transitional sections, that incumbent members of school boards are eligible both to serve out the remainder of their terms, and to run for re-election, despite having relatives who were hired during their tenure employed by the school district. However, the elected candidate will not be eligible to take the oath of office and to serve as a board member unless the relatives first resign from employment.
The Act addresses eligibility for membership on a board of education in Section 71(2) of House Bill 940, which amended KRS 160.180(2) as follows:
No person shall be eligible to membership on a board of education:
* * * *
(i) Who has a relative as defined in subsection (1) of this section employed by the school district and is elected after July 13, 1990. However, this shall not apply to a board member holding office on July 13, 1990 whose relative was not initially hired by the district during the tenure of the board member.
The term "relative" is defined in KRS 160.180(1), as amended by the Act, to mean "father, mother, brother, sister, husband, wife, son, daughter, aunt, uncle, son-in-law, and daughter-in-law."
To understand the application of this section to incumbent members of school boards who wish to serve for the remainder of their term and to run for re-election, it is also necessary to consider KRS 160.380, as amended by the Act, which addresses the eligibility of relatives of incumbent board members to remain employed. KRS 160.380(2)(f) provides:
No superintendent shall employ a relative of a school board member of the district, unless on July 13, 1990, the board member's relative is an employee of the district, the board member is holding office, and the relative was not initially hired by the district during the tenure of the board member. A relative employed in 1989-90 and initially hired during the tenure of a board member serving on July 13, 1990 date of this Act, may continue to be employed during the remainder of the board member's term . However, the superintendent shall not promote any relative of a school board member who continues employment under the exception to this subsection. [Emphasis added.]
The first sentence of KRS 160.180(2) clearly permits board members who were elected prior to July 13, 1990, to serve out the remainder of their term. The second sentence merely describes a group to whom the first sentence would not apply and indicates that any board member in office on July 13, 1990, who had a relative as defined by the Act remains eligible to serve on the board of education indefinitely providing that his relative was not initially hired by the district during the tenure of that board member. KRS 160.380(2)(f) makes it clear that relatives employed during the tenure of an incumbent board member may keep their jobs for the duration of the current term of office. Thus, these provisions are consistent in allowing incumbent members of the school boards and relatives hired during the board members' tenure to serve out the remainder of the terms and remain employed during those terms.
Your question deals, more specifically, with eligibility of an incumbent member of a school board, who has relatives working for the district, to run for re-election.
It is the opinion of this office that "eligible to membership on a board of education" relates not to the time when filing as a candidate, and not to the time of election, but to the time when the elected candidate takes the oath of office and assumes the office. The expression "eligible to membership" means qualified for office. Kirkpatrick v. Brownfield, 97 Ky. 558, 31 S.W. 137 (1895); OAG 80-557, OAG 64-624, OAG 64-628, OAG 62-597.
In Kirkpatrick , when a rival candidate for county clerk challenged the winner based on qualifications, the court examined constitutional requirements, some of which expressly applied at the time of election, others of which contained no specific time. The Court concluded that "eligible to the office" means "legally qualified," or "qualified to hold office":
And so in numerous instances it is apparent that, where eligibility is required as of the date of the election, words are used to make the meaning indisputable so, in less numerous instances, we find the words "eligible to the office" without additional words relating to "the time of election. " We think, therefore, that the words in themselves, as used in the constitution, mean "qualified for the office," not at the time of election, but at the time when the office is to be first assumed.
Kirkpatrick v. Brownfield , supra , at 138. Based on this case this office determined that a candidate for school board must reach his 24th birthday prior to the date on which he would be required to take office under KRS 160.180(1)(a), because the statutory language did not express any other requirement. OAG 64-624 and OAG 64-628. On the other hand, residency and claims against the board must be met and resolved by election day because the express statutory language of KRS 160.180(1)(b) creates this requirement. OAG 68-542 and OAG 62-957.
Because the statutory language of KRS 160.180(2)(i) does not express any specific time requirement, according to Kirkpatrick, supra, the eligibility requirement in that provision takes effect at the time that the elected officer takes office.
Accordingly, in the situation that you have presented, David McKechnie, the school board chairman who is running for re-election, may file despite the employment of his daughter by the school district for the remainder of his current term. However, as soon as the current term of office has expired, the terms of KRS 160.180 will not permit a person to be eligible for membership on the school board if the person has relatives who are employed by the school district and who were hired by the school district after the board member took office. Should Mr. McKechnie be elected, Mr. McKechnie and his daughter will need to decide whether the daughter will resign prior to the day that Mr. McKechnie would take the oath of office or whether Mr. McKechnie would elect not to take the oath of office and not to serve on the board.