Request By:
Dr. Donald B. Mills
Superintendent
Harlan Independent Schools
Harlan, Kentucky 40831Dr. Parker Tiller
Superintendent
Jenkins Independent Scools
P.O. Box 74
Jenkins, Kentucky 41537
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letters you requested an opinion of the Attorney General on the following situation. In each district a board member has been elected to serve on the school board for 1991-1995. However, the question has been raised as to whether the member is qualified under KRS 160.180, due to being related to an employee of the school district who was hired during an incumbent board member's prior tenure or who is related to a newly elected board member. In particular, you ask what the legal obligations and responsibilities of the superintendent are should the board member take the oath of office and assume his responsibilities. You ask, in addition, what the effects of contractual responsibilities are between the school district and an employee who is related to the board member assuming office. Our response will list some of the factors and issues to consider when faced with questions concerning eligibility of a board member.
Eligibility requirements for membership on a board of education are set forth in KRS 160.180(2), which states in pertinent part:
(2) No person shall be eligible to membership on a board of education: . . . (i) who has a relative as defined in subsection one (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 if his relative was not initially hired by the district during the tenure of the board member.
(3) If, after the election of any member of the board, . . . he does anything that would render him ineligible for re-election, he shall be subject to removal from office pursuant to KRS 415.050 and 415.060.
(4) A board member shall be eligible for re-election unless he becomes disqualified.
Failure to meet the qualifications set forth in KRS 160.180, or doing that which is prescribed in KRS 160.180, constitutes cause for consideration for removal of a member of a local board of education from office, for usurpation of that office, by the Attorney General. OAG 78-159 and OAG 67-146.
KRS 160.180 was amended in 1990 to include subsection (2)(i) which restricts eligibility for membership on a school board to individuals having no relatives employed by the board with limited exceptions set forth in the statute. Therefore, if a newly elected candidate is ineligible, under the current standards, to serve on a board of education, he is subject to removal from office or a quo warranto proceeding pursuant to KRS 415.050 and 415.060.
Note, also, that KRS 415.030 states:
If a person usurps an office or a franchise, the person entitled thereto, or the Commonwealth may prevent the usurpation by an ordinary action.
KRS 415.050 states:
For usurpation of other than county offices or franchises, the action by the Commonwealth shall be instituted and prosecuted by the Attorney General.
Clearly, only the person entitled to the office or the Attorney General (on behalf of the Commonwealth) may institute and prosecute an action to prevent usurpation of office. KRS 415.030 and 415.050.
Chadwell v. Commonwealth, 280, 288 Ky. 644, 157 S.W.2d 280 (1941).
Griffey v. Board of Education of Washington County, Ky., 385 S.W.2d 319 (1964). Neither the superintendent of schools nor a private citizen may do so.
Jones v. Browning, 298 Ky., 183 S.W.2d 38 (1944). Nor may the county board of education declare the office of one of its members vacant because of forfeiture on account of violation of the eligibility statute.
Salyers v. Lyons, 304 Ky. 320, 200 S.W.2d 749 (1947).
Board of Education of Martin v. Cassell, 310 Ky. 274, 220 S.W.2d 552 (1949).
The Attorney General's power to authorize ouster is discretionary. OAG 76-14. Also, it is well established that KRS 415.050 does not prevent the Attorney General from having assistance of other counsel in cases that he brings when other counsel, with his consent, volunteer their services without any expense to the state.
Commonwealth v. Begley, 273 Ky. 636, 117 S.W.2d 599 (1938).
A usurper has been defined as "one who intrudes himself into an office that is vacant or without color of title or right ousts the incumbent and assumes to act as an officer by exercising some of the functions of the office."
Broyles v. Commonwealth, 309 Ky. 837, 219 S.W.2d 52 (1949). The Court held in this case that in order for a cause of action to exist when quo warranto proceeding is commenced it is necessary for the term to have begun and the defendant to have assumed office. Therefore, where the oath of office had been administered prior to the expiration of the predecessor's term, the action was dismissed. Broyles, supra.
The effect on board members of violations of KRS 160.180 varies, according to the type of violation, and according to whether the board member resigns or is removed by legal action.
A member of a board of education who resigns from the board due to a conflict of interest may run again, but if he is removed by a court, he is forever barred from running for the office of school board member. OAG 72-777. However, a board member who resigns prior to ouster due to misconduct does not permanently cure the problem of ineligibility and will be subject to ouster if he runs and tries to serve as a member of the board of education again. OAG 82-32. See also
Stringer v. Commonwealth, Ky., 428 S.W.2d 203 (1968). There, the state was not estopped nor barred by laches from instituting a quo warranto proceeding against a member of a board of education during a second term for a conflict of interest that had occurred during his first term. The judge also noted that the courts should be slow to invoke estoppel against the state in its efforts to enforce the eligibility statute or membership on a board of education as the purpose of that statute is to prevent conflicts of interest and to prevent self-interest on the part of public servants. Stringer, supra.
Eligibility criteria for membership on a board of education are mandatory. KRS 160.180. Therefore, unless the elected candidate meets all of the statutory criteria, he is ineligible to serve on the board of education. Accordingly, any board member in office on July 13, 1990, who is re-elected after that date, will not be eligible to take office and to serve on the board of education if a relative (as defined in the statute) remains employed by the district who was hired after the incumbent's earlier election. Moreover, any new candidate who was elected after July 13, 1990, who has relatives employed by the school district, similarly, will not be eligible to take office and to serve on the board of education. OAG 90-109 and letter to Susan W. Mullen on December 3, 1990, copies enclosed . .
Should candidates in the above circumstances attempt to take office, the superintendent or board members should notify the Office of the Attorney General for appropriate action. It would be inappropriate for the superintendent to take steps to discharge employees of the district who are related to the candidate for school board as the matter is one of the eligibility of the candidate to serve. KRS 160.180(2)(i). Therefore, we do not reach the question of the effect of contracts between the school district and the employee, as the issue first to be resolved would be whether the school board member is eligible to serve.