Kentucky Advisory Opinions July 01, 1993: OAG 93-050 (July 1, 1993)

OAG 93-050.

As the Superintendent of the Butler County Public Schools you have requested our opinion regarding a potential conflict of interest issue involving a School Based Decision Making Council in your district. Specifically, you ask:

Whether a teacher who is serving as an elected member of a school's Site-Based Decision Making Council may remain a member of the Council and vote for her son while he is a candidate for the position of principal of the school.

KRS 160.345(2)(a) states that each School Based Decision Making Council shall be composed of 2 parents, 3 teachers and the principal. When the principal position is vacant, the School Based Decision Making Council has the statutory authority to select the principal from a list supplied by the superintendent. KRS 160.345(1)(i). The council's decision is binding on the superintendent. Id.

The Kentucky Education Reform Act contains an anti-nepotism statute for school board members in KRS 160.180(2)(i) and an anti-nepotism statute for superintendents and principals contained in KRS 160.380. However, there is no statutory nepotism prohibition in KERA prohibiting a School Based Decision Making Council member from participating in the selection of the principal when the member's son has applied for the principal position.

Allowing the council member in question to vote for her son may constitute a common law conflict of interest. OAG 93-33 contains an in-depth survey of legal authority on the issues of conflict of interest for public officials. That opinion cites 67 C.J.S., Officers 204:

As a general rule, the term 'conflict of interest' refers to a clash between public interest and the private pecuniary interest of the individual concerned, and there is a conflict of interest when a public officer votes on a matter in which he has a direct personal and pecuniary interest. The interest which disqualifies is a personal or private one, not such an interest as the public officer has in common with all other citizens. According to some authority, in order to constitute a disqualification, the personal pecuniary interest of the official must be immediate, definite, and capable of demonstration, and may not be remote, uncertain, contingent and speculative . . . .

As we stated in OAG 93-33, the determination of a conflict of interest is a factual matter. If the parent council member either financially supports her son or if the member is supported by her son, then the interest would be sufficiently direct to disqualify the member from participating in the selection process. Each case must be reviewed based on its specific factual situation.

Even if the council member does not have a legal disqualification, we believe that allowing a school council member to cast a vote to select her son as principal violates the spirit of KERA and has the appearance of impropriety.

Sincerely yours,

CHRIS GORMAN

ATTORNEY GENERAL

Lynne Schroering

Assistant Attorney General

(502) 564-7600