Kentucky Advisory Opinions February 21, 2003: OAG 03-001 (February 21, 2003)

OAG 03-001.

Opinion of the Attorney General

The Kentucky Department of Education has requested an opinion whether write-in candidates are eligible to run for positions on the board for independent school districts where candidates run at-large. The fundamental issue presented by this inquiry is whether, in an at-large election when there are several vacancies on the school board and an insufficient number of validly filed candidates to fill each vacancy, write-in candidates can fill an unopposed vacancy. It is our opinion that such vacancies cannot be filled by election, but must be made via appointment by the State Commissioner.

Write-in candidates are generally eligible to run in any election. In an at-large election, however, there may be exigencies in which there are board vacancies for which no candidate has filed to run. In other words, there are more vacancies than candidates. In that case, the vacancies are filled by appointment and not by election. Where there is no election, write-in candidates are ineligible to fill the school board vacancy.

KRS 160.240 (1) is a broad statute that applies general election rules to school board elections. KRS 118.315 establishes the criteria for candidates seeking nomination for election to an office. To validly file and become a candidate for the office, a person must submit a petition; whose form is established by the State Election Board; signed by a set number of registered voters from the district/jurisdiction in which that candidate seeks a nomination; and, lastly, file that application by the August deadline. When these statutes are read in conjunction, there is no doubt that write-in candidates can run for school board vacancies in elections. See OAG 90-105.

The law of statutory construction dictates that when two statutes present a conflict or ambiguity, then the more specific statute governs. See, DeStock No. 14, Inc. v. Logsdon, Ky., 993 S.W.2d 952, 959 (1999). KRS 160.240(1) and KRS 118.315 are by design, general statutes. KRS 160.210(1)(b), however, is a more specific statute governing school board elections.

KRS 160.210(1)(b) states as follows:

[i]f no candidate files a petition for nomination for a local board of education opening pursuant to KRS 118.315 and 118.316, the chief state school officer shall fill the new term of office by appointing a member to the local board who meets the residency requirement and the qualifications for office provided in KRS 160.180. The local board of education may make nominations and any person may nominate himself or another for the office.

As such, where there are vacancies on the school board but no candidate has filed a petition for nomination under KRS 118.315, the Commissioner, appoints a person to the vacancy pursuant to KRS 160.210(1)(b). Since the vacancy is then filled via appointment, no election is held for that position. Because there is no election, there can be no write-in candidate. So, for an at large election for school board seat, the effect of these statutes is to limit the number of vacancies open for election to the number of validly filed applicants.

If there are more vacancies than candidates, the Commissioner becomes a de facto electorate of one. To sum up, a write in candidate may only run for a school board seat in which there is a validly filed and qualified candidate on the ballot.

Albert B. Chandler III

Attorney General

Morgain Sprague

Assistant Attorney General