[1996/oagheade.htm]

OAG 96-16

March 15, 1996

Subject: ELIGIBILITY REQUIREMENTS FOR MEMBERSHIP ON A BOARD OF EDUCATION - school board member becomes candidate for incompatible office

Written By: Scott White

Requested By: Pamela E. Mullins, Board Member, Covington Independent Schools District

Syllabus: If a member of an independent schools district board of education becomes a candidate for nomination or election to a city commission, that school board member shall be subject to removal from office pursuant to KRS 415.050 and 415.060.

OAGs Cited: OAG 79-95

Statutes Construed: KRS 61.080, 160.180, 415.050, 415.060

Constitutional Provisions Cited: Kentucky Constitution �165

OPINION OF THE ATTORNEY GENERAL

The Office of the Attorney General is asked by Board Member Mullins to render an opinion concerning incompatible offices. The Attorney General provides this opinion on a public question of law pertaining to local government. KRS 15.025(3).

Board Member Mullins requests our opinion on this question of law:

May a member of the Covington Independent Schools District Board of Education continue to serve as a board member after having filed to be a candidate for election to the Covington City Commission?

The answer is no.

Ky. Const. �165 provides that “[n]o person shall, at the same time, be a state officer . . . and an officer of any county, city, town, or other municipality.” See also, KRS 61.080.

School board members are state officers as envisioned by �165. The Kentucky Court of Appeals said in Board of Education of Louisville v. Society of Alumni of Louisville Male High School, Inc., 239 S.W.2d 931 (Ky. 1951), “In this state, public education has long been recognized as a function of state government, and members of boards of education have been held to be state officers.”

KRS 160.180(2)(f) provides that to be eligible for school board membership “[n]o person shall be eligible to membership on a board of education ... who holds or discharges the duties of any civil or political office, deputyship, or agency under the city or county of his residence.”

Although Ky. Const. �165 and KRS 61.080 refers to incompatible offices “at the same time” and KRS 160.180(2)(f) refers to a person who “holds or discharges the duties of” an incompatible office, KRS 160.180 places additional restrictions on a school board member who “becomes a candidate” for an incompatible office. (Emphasis added.)

KRS 160.180(3) states that “[i]f, after the election of any member of the board, he[she] . . . becomes a candidate for nomination or election to any office or agency the holding and the discharging of the duties of which would have rendered him[her] ineligible before election, . . . he[she] shall be subject to removal from office pursuant to KRS 415.050 and 415.060.”

Ky. Const. �165, KRS 61.080, 160.180(2)(f) and (3), 415.050, and 415.060, clearly provide that where a member of the Covington Independent Schools District Board of Education becomes a candidate for nomination or election to the Covington City Commission, then that school board member shall be subject to removal from office. See also, Yonts v. Com. ex rel. Armstrong, 700 S.W.2d 407 (Ky. 1985) – Board of Education member forfeited office when he filed as candidate for State Representative.

At our request, the Covington Independent Schools District Board Attorney, Gerald F. Dusing, submitted his legal opinion dated February 23, 1996. Attorney Dusing concluded that “. . . Ms. Mullins' filing to run for the Covington City Commission subjects her to removal from the school board . . . .”

Also at our request, Board Member Mullins submitted a letter dated February 23, 1996, in which she sets forth three arguments in support of her position that she should be permitted to remain on the Board during the pendency of her candidacy for the City Commission.

First, Board Member Mullins argues that the “candidate” provision in KRS 160.180 is “vague and subject to interpretation.” KRS 160.180, she argues, should be interpreted to only preclude board members from being both a candidate for an incompatible office and a candidate for re-election to the board “at the same time”. This argument fails on the shoals of KRS 160.180. This statute expressly prohibits a member of a board of education from remaining on the board after becoming a candidate for any office which is incompatible with the office of school board member.

In Commonwealth ex rel Buckman v. Miller, 272 S.W.2d 468 (Ky. 1954), the court stated that the primary purpose for the enactment of KRS 160.180 was to separate school matters from political matters. The court applied the rule that “educational and political entanglement should be avoided,” and held that KRS 160.180 precluded a board member from becoming a candidate for an office incompatible with the office of school board member. The Court stated candidacy could only continue where the board member resigned from the board.

The second argument advanced by Board Member Mullins is that KRS 160.180 does not apply to an independent schools district because “former analogous KS 4369k-5 was construed not to apply to trustees of an independent graded school district.” In further support, she cites Board of Trustees v. Renfroe, 83 S.W.2d 27 (Ky. 1935). In Renfroe, the Court stated that KS 4369k-5 “defines the eligibility . . . of members of county boards of education,” and that KS 4465 “prescribes the qualifications of members of the boards of trustees of graded common school districts.” Id. at 29. The Court then held that KS 4369k-5 was “applicable solely to county boards of education,” and KS 4465 was “applicable only to . . . boards of trustees of graded common school districts.” Id. The Court then stated that while KS 4369k-5 prohibited a member of a county board of education from becoming a candidate for an incompatible office, KS 4465 contained “no such provision . . . for graded schools.” Id.

It is plain that the Renfroe case does not apply to the application of KRS 160.180. In Renfroe, the court was faced with two statutes addressing eligibility of members of different types of school boards: county school boards and independent schools district boards. Today, only one statute, KRS 160.180, governs the eligibility requirements for membership on a board of education. KRS 160.180, unlike its predecessor Kentucky Statutes, makes no such differentiation between school boards. KRS 160.180 applies to both county school district boards and to independent schools district boards. Renfroe is not applicable to this question.

Board Member Mullins' third argument is that KRS 61.080 only prohibits a person from holding incompatible offices “at the same time.” However, this view ignores the fact that KRS 160.180 places additional restrictions on school board members. KRS 160.180 plainly states that a school board member is prohibited from becoming a candidate for an incompatible office.

In closing, we concur with the opinion of Attorney Dusing and conclude that, under KRS 160.180, Board Member Mullins having become a candidate for the Covington City Commission while presently serving as a member of the Covington Independent Schools District Board of Education is subject to removal as these two voluntary actions on her part [incumbency and candidacy] are incompatible in this context.

A. B. CHANDLER III

ATTORNEY GENERAL

SCOTT WHITE

DIRECTOR

CIVIL AND ENVIRONMENTAL LAW DIVISION