Kentucky Advisory Opinions July 20, 2004: OAG 04-007 (July 20, 2004)

OAG 04-007.

Opinion of the Attorney General

KRS 160.210(1), which governs the selection of members of local boards of education, was amended in 2004 to provide as follows:

(a)In independent school districts, the members of the school board shall be elected from the district at large. In county school districts, members shall be elected from divisions.

(b)If no candidate files a petition of nomination for a county board of education opening pursuant to KRS 118.315, the chief state school officer shall fill the new term of office for all openings that have no candidate filings under KRS 118.315 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.

(c)Unless a number of candidates equal to or greater than the number of positions to be filled file petitions for nomination for an independent board of education opening pursuant to KRS 118.315, the chief state school officer shall fill the new term of office for all openings that have no candidate filings under KRS 118.315 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.

Anne E. Keating, Assistant General Counsel for the Department of Education, has requested an opinion as to the propriety of the Department's proposed manner of implementing KRS 160.210(1) in cases where every validly filed petition of nomination for a school board position is subsequently withdrawn. Since the Department's proposal affects the determination of whether an election is held in these cases, the rights of potential "write-in" candidates are at issue.

Pursuant to KRS 160.240(1), elections for local boards of education are subject to the general election laws except where a statute provides otherwise. Accordingly, we recognized in OAG 90-105 that write-in candidacies are authorized in school board elections by virtue of KRS 117.265. The ability to run as a write-in candidate is governed solely by statute, since candidacy is not a fundamental constitutional right. Chapman v. Gorman, Ky., 839 S.W.2d 232, 237 (1992). Subsection (2) of KRS 117.265 provides as follows:

Write-in votes shall be counted only for candidates for election to office who have filed a declaration of intent to be a write-in candidate with the Secretary of State or county clerk, depending on the office being sought, not less than ten (10) days preceding the date of the regular or special election. The declaration of intent shall be on a form prescribed by the Secretary of State.

In OAG 03-1, we had occasion to address situations in which no candidate files a petition of nomination for a school board position and the Commissioner of Education makes an appointment to fill the vacancy. In a case where the Commissioner appoints the member, no election is held for that seat, and "[b]ecause there is no election, there can be no write-in candidate." As we observed in OAG 03-1, the timely filing of a petition by the second Tuesday in August, pursuant to KRS 160.210(1), is a prerequisite for a valid school board candidacy.

A potential ambiguity arises, however, when a candidate has filed a valid petition of nomination and subsequently withdraws that petition, leaving no candidates on the ballot. In these circumstances, it must be determined whether a proper application of KRS 160.210(1) requires an election to be held for the benefit of potential write-in candidates, or whether the Commissioner of Education is to fill the vacancy by appointment.

The Department of Education, having consulted with the Office of the Secretary of State, proposes using the August deadline for filing petitions of nomination under KRS 118.365(2) as a date certain for determining whether any candidate has "file[d]" within the meaning of KRS 160.210(1), so as to establish conclusively whether an election will be held for a particular seat the following November. Under the Department's proposal, if a candidate for any county board of education position has filed a timely petition and then withdraws the petition not later than the August deadline, leaving no other candidates with petitions filed, it will be concluded that "no candidate" has filed for the position under subsection (2). Similarly, if a number of candidates equal or greater to the number of vacant seats on an independent board of education have filed timely petitions, but one or more of those petitions should be withdrawn not later than the August deadline, leaving fewer candidates than available positions, it will be concluded that the excess positions have "no candidate filings" under subsection (3). The Commissioner will then appoint a member to any such position on the school board.

On the other hand, if a candidate files a timely petition for a county school board seat and then withdraws after the August deadline, leaving no other valid candidates, it will be concluded that a candidate did file, and the election will be held, with full opportunity for write-in candidates to participate. In the same way, if as many candidates have petitions on file at the August deadline as there are vacant seats on an independent board, but a petition is withdrawn after the deadline, leaving fewer candidates than vacancies, it will be concluded that candidates had filed for all vacant positions, and all those positions will be included in the election. In effect, the Department's approach takes a "snapshot" of the field of candidates at the point when the time expires for filing a petition of nomination, and uses this as the basis for ascertaining whether the position is to be filled by election or appointment.

We are aware of no case law or previous opinions addressing this subject. It does seem, however, that the Department's proposal is a reasonable way of interpreting and applying KRS 160.210(1).

To take the most literal reading of the statute would mean that only if "no candidate" had ever "file[d] a petition" could a county board position be filled by appointment under KRS 160.210(1)(b). Likewise, in the case of an independent board under KRS 160.210(1)(c), even if there were no point in time when a number of petitions equal to the number of vacancies were simultaneously on file, the Commissioner might be precluded from making an appointment by several serially filed and withdrawn petitions, thus requiring an election for every vacancy.

Hypothetically, under this strictly literal reading of KRS 160.210(1), an election for a school board seat might have to be held with no candidates on the ballot, if a single person had filed a petition at the earliest possible date under KRS 118.365(2) ( i.e., the day after the previous year's November election) and then withdrawn the petition later that same day. Only write-in candidates would then be eligible to run, and under KRS 117.265(2) it might not be known until ten days prior to the election whether there would be any write-in candidates at all. While this scenario may occur in other types of elections, it hardly seems consistent with the legislative intent behind providing the Commissioner of Education an alternative means of filling a school board vacancy when no candidate has filed a petition for nomination. A strict, literal construction need not be followed when it creates an unreasonable result in light of the purpose of the statute. Newbolt v. Board of Education of Berea Ind. School Dist., Ky., 409 S.W.2d 513 (1966).

The strict construction described above would be of no benefit to the public, beyond the potential to know ahead of time, with certainty, that an election would have to be held for a particular office. It is only to be expected that in some cases, until the August filing deadline, uncertainty will prevail as to whether there will be any candidates to list on the November ballot. Moreover, until that deadline, it is always uncertain how many candidates will be listed. KRS 118.305(3) provides that "[c]andidates for members of boards of education shall have their names printed on ballot labels and absentee ballots for the regular election only after filing" their petitions of nomination. There would normally be little practical advantage in merely knowing, in advance of the August deadline, that an election would have to be held for a particular office, since ballots could not yet be prepared. On the other hand, there would be considerable disadvantage in the delay caused by requiring the Commissioner to wait until potentially only ten days before the scheduled election to know whether there would be any write-in candidates or whether the position could be filled through appointment.

KRS 160.210(1) conditions the holding of an election upon the filing of a petition of nomination. Presumably, the legislative intent is also that such a filing should be effective. "All statutes are presumed to be enacted for the furtherance of a purpose on the part of the legislature and should be construed so as to accomplish that end." Commonwealth ex rel. Martin v. Tom Moore Distillery Co., 287 Ky. 125, 152 S.W.2d 962, 967 (1939). Yet a petition that has been withdrawn is no longer effective for its intended purpose, as the candidate who withdraws is no longer eligible for election. KRS 118.212(4). Therefore, there is no reason to believe that the intent of KRS 160.210(1) is to require an election solely on the basis of a petition that is withdrawn before the August deadline.

It is true, however, that a petition of nomination withdrawn after the filing deadline can still have some practical effect on election procedures under the applicable statutes. The passing of the August filing deadline sets in motion the events leading to the printing of ballot labels, absentee ballots, and supplemental paper ballots, pursuant to KRS 117.145, by providing reasonable certainty as to what names are to appear on the ballot. KRS 118.305(3). Although a withdrawn candidate's votes no longer count toward election, that candidate's name may still appear on the ballot as long as the petition of nomination was validly filed as of the August deadline. KRS 118.212. It is reasonable, then, that an election should be held for a school board position, with full opportunity for write-in candidates, when a valid petition of nomination for that position was on file as of the August deadline, regardless of whether the petition is later withdrawn.

Therefore, it is our opinion that the Department's proposal to have the Commissioner of Education appoint a school board member when all candidates for that position have withdrawn their petitions of nomination prior to the August filing deadline, but to have an election whenever at least one petition remains on file for that seat at the August deadline, is consistent with the language and intent of KRS 160.210(1). This approach provides uniformity of practice and adequately preserves the rights of potential write-in candidates, while also giving full effect to the legislative intent of allowing vacancies to be filled by appointment instead of election.

Gregory D. Stumbo

Attorney General

James M. Herrick

Assistant Attorney General