Request By:
Honorable J. Stephen Kirby
Staff Attorney
Kentucky School Boards Association
260 Democrat Drive
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter you requested a formal written opinion concerning revisions to school laws made by the 1990 General Assembly. In particular, you are requesting an interpretation of Section 71 of House Bill 940 which amends KRS 160.180 concerning eligibility requirements of members of boards of education.
KRS 160.180(2), as amended, states in pertinent part:
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 when the relative was not initially hired by the district during the tenure of the board member. [Emphasis added.]
KRS 160.180(1), as amended, defines "relative" as "father, mother, brother, sister, husband, wife, son, daughter, aunt, uncle, son-in-law, and daughter-in-law."
In particular, you seek interpretation of the meaning of the word "initially" contained in KRS 160.180(2)(i) regarding the determination of which relatives are considered to have been hired by a district prior to the tenure of a school board member. You present the following facts.
In 1982 or thereabout, a woman was given an annual contract as a substitute teacher. As a substitute teacher she was paid only for those days for which she did work, but I am told she did receive a contract for the year. In 1986 the teacher's brother became a board member. In 1987, the teacher moved from substitute to full-time teaching.
Your question is: Did subsitute teaching constitute initial employment and qualify the teacher to be considered as having been initially hired by the district prior to the tenure of the board member?
It is the opinion of this office that "initially hired" contemplates the beginning of the relative's continuous employment by the school district, whether that employment is in a classified position or certified position, and whether that employment is part time, temporary, or full time. That employment, however, must be continuous. Therefore, in the position that is presented in your letter, assuming the substitute teacher continued to teach from 1982 through 1986 (when the teacher's brother became a board member) and on to the present without interruption, the teacher would be found to have been initially hired prior to the time that the brother became a member of the board.
You have asked a follow-up question in this area regarding an individual who is hired after a school board member takes office, who is unrelated to that board member at the time of being hired, but who then marries the board member. You ask whether the fact that the individual was not a relative of the board member at the time of being hired will have any impact on determining when the individual was "initially hired. " It is the opinion of this office that the question of when an individual became a board member's relative has no impact on determining when the individual was "initially hired. " The statutory exception applies to a board member whose current relatives were not initially hired by the school district during the board member's tenure. The statute offers no exception for a board member's current relative who was not a relative at the time of being "initially hired. "
Another question presented concerns a factual situation in which:
an individual was hired and worked a full year for the board in 1980 and then went to work elsewhere for several years. In the meantime, the individual's relative became a board member in 1986 and thereafter in 1987 the individual returned to employment with the school district. What would be the status of the board member in that case?
In this situation, when the relative resigned, the relative's continuous employment by the school district ended. The relative's date of initial hire for his current employment was the date in 1987 when the relative was hired. Continuous employment is ended if the relationship between the employer and the employee is served. In a telephone conversation, you added that the teacher left the first district due to a reduction in force. In that circumstance, it would be necessary to examine statutes in effect at the time of layoff to determine whether the employer-employee relationship had been severed or whether the employer had a vested right to restoration when a vacancy or new position became available. See KRS 161.800.
In determining the status of the board member, note that under KRS 160.180(2)(i), the board member in office on July 13, 1990 may continue to serve for the remainder of his term, despite the employment of a relative during his tenure. This is consistent with KRS 160.380(1)(f), as amended by Section 7 of House Bill 529, which states: ". . . A relative employed in 1989-90 and initially hired during the tenure of a board member serving on July 13, 1990, may continue to be employed during the remainder of the board member's term . . . ." However, assuming the board member is a candidate for reelection and is reelected after July 13, 1990, prior to taking the oath of offoce, that member and the employee must decide whether the relative will step down from his position or whether the elected board member will decline to take the oath of office to avoid sanctions against the board member (set forth in KRS 160.180(3)) against the superintendent (set forth in KRS 160.190(3)).