Attorney general says school board, sanitation board memberships incompatible

Published 10:34 am Thursday, May 23, 2019

FRANKFORT — In an opinion issued May 16, Kentucky Attorney General Andy Beshear said that service on the Lincoln County School Board of Education and the Lincoln County Sanitation District Board is incompatible.

Jonathan Baker, attorney for the Lincoln County Board of Education, had requested an opinion of the attorney general on the possibility of the two boards being incompatible when a dual membership question arose.

Win Smith, a member of the Lincoln County School Board, had served as a member of the Lincoln County Sanitation District Board prior to his election to the school board. When it was brought forth to the school board that he was asked to return as a sanitation board member, Baker asked for the opinion.

“He had resigned from the sanitation board prior to the election and becoming a school board member. They were wanting him to serve on both (boards),” Baker said. “We were concerned there might be an incompatibility issue … I made the request of the attorney general’s office to provide us with an opinion as to whether he could sit on both boards because we did not want there to be any conflict or question about holding position on both boards.”

The AG’s office advised that the offices were incompatible pursuant to Kentucky Revised Statute 61.080(6), which states that:

“No person shall, at the same time, fill any state office and an appointed office of a special purpose governmental entity that has the authority to levy taxes, unless a state statute specifically requires a person holding a state office to serve in an appointed office of a special purpose governmental entity that has the authority to levy taxes.”

In a press release from the AG’s office, it was noted that Kentucky courts have long held that membership on a local school board constitutes a state office (Board of Ed. of Louisville v. Soc’y of Alumni of Louisville Male High School, 239 S.W.2d 931, 933 (Ky. 1951)) and that a sanitation district is a special purpose governmental entity (Coppage Constr. Co., Inc. v. Sanitation Dist. No. 1, 459 S.W.3d 855, 860-61 (Ky. 2015)).

The sanitation district is a special purpose governmental entity governed by a three-member board appointed by the county judge/executive (KRS 220.140) and it has the authority to levy “one, two or three annual taxes … to be used for the purpose of paying the expenses of organization, surveys and plans, and for other incidental expenses that may be necessary up to the time money is received from the sale of bonds.” (KRS 220.360).

“Therefore, because a sanitation district is a special purpose governmental entity that is governed by appointed board members and has authority to levy taxes, membership on its board is incompatible with any state office pursuant to KRS 61.080(6),” the release stated. “Accordingly, membership on the board of the Lincoln County Sanitation District is incompatible with membership on the Lincoln County Board of Education.”