[1994/oagheade.htm]

OAG 94-60

September 7, 1994

Bill Lear

State Representative, 79th Legislative District

House of Representatives

732 Lakeshore Drive

Lexington, KY 40502

Dear Representative Lear:

You have written our office asking several questions regarding a school council's proposed method of electing minority members to its school council. The 1994 General Assembly recently amended KRS 160.345(2)(b)2 to require that school councils in schools having 8% or more minority students shall have at least one minority member.

KRS 160.345(2)(b) provides in pertinent part:

2. School councils in schools having eight percent (8%) or more minority students enrolled, as determined by the enrollment on the preceding October 1, shall have at least one (1) minority member. If the council formed under paragraph (a) of this subsection does not have a minority member, the principal, in a timely manner, shall be responsible for carrying out the following:

a. Organizing a special election to elect an additional member. The principal shall call for nominations and shall notify the parents of the minority students of the date, time, and location of the election to elect a minority parent to the council by ballot; and

b. Allowing the minority teachers in the building to select one (1) of their number to serve as a teacher member on the council. If there are no minority teachers who are members of the faculty, an additional teacher member shall be elected by a majority of all teachers. Term limitations shall not apply for a minority teacher member who is the only minority on faculty.

You have asked our office to review the following proposed school council plan for implementing the mandate of KRS 160.345 requiring the inclusion of minority membership on the school council:

If the Cassidy School minority student population exceeds eight percent (8%) as determined by the enrollment on the preceding October 1, the Cassidy School Council shall have at least one minority member. The election of teacher members shall precede the election of parent members. If the Council formed under Section 1 of KRS 160.345 does not have a minority member then the parents shall elect another member who is a minority. Thereupon the teachers will elect another member at-large in accordance with the statute cited above.

The principal shall be responsible for notifying all parents of the date, time and procedures for the election of parent members including the encouragement of minority candidates.

The parent members shall be elected by the parents of students enrolled in the school in an election conducted by the PTA. Parent members shall be elected by a majority vote of all parents present and voting.

Relating to the proposed school plan, you have asked our office the following three questions:

1. Whether the proposed plan to allow all parents, and not just the parents of minority students, to participate in the special minority representative election complies with the statute.

We believe that the intent of KRS 160.345(2)(b) is to allow minority parents and parents of minority children an opportunity to elect a minority school council member. The 1994 General Assembly amended the school-based decision making statute, KRS 160.345, to require that schools containing 8% minority students have at least one minority school council member. The statute is written to give teachers and parents the opportunity in the regular school council elections to choose a minority candidate and thus avoid having a special election. However, if the parents and/or teachers do not elect a minority member during the regular elections, then a special election shall be held to elect a minority parent member.

KRS 160.345(2)(b) requires that the principal shall organize the special election and "notify the parents of the minority students of the date, time and location of the election to elect a minority parent to the council." It is the opinion of the Attorney General that the intent of this statute is to create a special election for minority parents and parents of minority children to vote for a minority school council member. If all parents were intended to vote for the minority candidate then the statute would require that notice of the election be sent to all parents. However, KRS 160.345(2)(b) clearly directs the principal to seek nominations for the minority parent member and to send notice of the special election only to parents of minority children. Accordingly, we believe that the language in the proposed plan allowing all parents to vote in the special election conflicts with the intent of KRS 160.345(2)(b).

2. Whether the plan to have the special minority election, if necessary, on the same night as and immediately following the regular election complies with the statute.

We believe that this school council plan authorizing minority member elections immediately following the regular elections is impermissible since the election is not held in a "timely manner" and proper notice is not given to all minority parents and parents of minority students regarding the special election.

Requiring the elections to be held in a timely manner is a safeguard to prevent circumvention of this statute by failing to schedule the special election within a reasonable time span. By scheduling the special elections on the same night as the regular election the policy fails to allow for the minority parents to be notified of the special election. The special election should be held in a reasonable length of time from the regular election so that parents may receive notice of the special election.

Additionally, the school policy fails to provide for reasonable notification to the minority parents of the special election as required by KRS 160.345(2)(b). This statute contemplates that the minority parents would receive notice of the special elections so that nominations may be made and eligible parents may vote for the minority parent representative. Pursuant to the school policy, the parents receive notice that there is only a possibility of a special election depending on the outcome of the regular election. We do not believe that holding the special elections on the same night as the regular elections is consistent with KRS 160.345(2)(b) and we recommend that the policy allow a reasonable period of time between the two elections.

3. If the answer to question number [1] is in the negative, whether any provision of the statute which limits participation in the election of the minority representative to minority parents only (rather than permitting all parents--minority and non-minority) to vote is constitutional.

We do not believe that this statute is unconstitutional. The office of the Attorney General will indulge every presumption in support of a statute's validity. OAG 94-7. "We will find a statute unconstitutional only if the case against a statute's validity is compelling." OAG 94-7.

Sincerely yours,

CHRIS GORMAN

ATTORNEY GENERAL

Lynne Schroering

Assistant Attorney General