Could a Kentucky school assign an itinerant teacher to work in a school whose principal was the teacher's relative?

Plain-English summary

Kentucky's Attorney General concluded that the school nepotism restriction in KRS 160.380(2)(g) reached itinerant and district-wide teachers. Outside the statute's grandfather clause, a certified employee could not perform any amount of work in a school whose principal was the employee's relative. The opinion said an itinerant designation or hiring by the district superintendent did not remove the employee from the phrase “employed in the principal's school.”

The AG distinguished the person who hired a teacher from the place where the teacher's services were used. It found no statutory basis for a minimum number of hours or proportion of work that a relative could perform in the principal's school. A different evaluator did not change the conclusion: the opinion's footnote said that safeguard was already a minimum precaution for spouses covered by the grandfather clause.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the 2011 opinion let a district-wide teacher work at a school run by a relative? A: No, outside the grandfather clause. The AG said a teacher whose services were used in that school was employed there for purposes of KRS 160.380(2)(g), whatever the district-wide job designation.

Q: Did it matter that the superintendent, rather than the principal, hired the teacher? A: No. The opinion said “employed in” the school described where the teacher worked, rather than identifying the official with hiring authority.

Q: Could the teacher work just a few hours at that school?
A: The AG said no. It found no exception in the statute for a small amount or proportion of work and drew the line at zero for a relative outside the grandfather clause.

Q: Did evaluation by someone other than the principal solve the problem?
A: No. A footnote said that arrangement did not mitigate the statutory prohibition. The opinion observed that a different evaluator was required even for spouses who qualified under the grandfather clause.

Background and statutory framework

The Education Professional Standards Board asked how the nepotism statute applied to teachers working at multiple schools. The opinion explained that district-wide teachers were hired by a superintendent, while school-level employees were hired by a principal after school council consultation. It read KRS 160.380(2)(g)'s restriction on employment “in the principal's school” as covering the teacher's actual work in a school, rather than only a school-level position. The AG contrasted the statute's wording with KRS 160.345(2)(f), which described positions filled “at the school.”

The opinion noted statutory grandfather clauses for relatives and spouses. It addressed itinerant teachers outside those clauses and concluded that such a certified employee could not work in a school led by a relative.

Citations and references

• KRS 160.380(2)(g): the principal-relative employment restriction and its grandfather clauses.
• KRS 160.380(1)(b): the definition of “relative” quoted in the opinion's footnote.
• KRS 160.345(2)(f): the school-level staffing provision used as a wording comparison.
• Barnes v. Indian Refining Co., 280 Ky. 811, 134 S.W.2d 620, 622-23 (1939): the distinction between employing and hiring.
• Manning v. Kentucky Bd. of Dentistry, 657 S.W.2d 584, 587 (Ky.App. 1983): the opinion's reason for declining to add an exception.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_8a423763-e8d9-4d4f-80ef-2774cb06f756/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_8a423763-e8d9-4d4f-80ef-2774cb06f756

Original opinion text

OAG 11-001
January 26, 2011
Subject:

Application of KRS 160.380(2)(g) to “itinerant” public
school teachers

Requested by:

Alicia A. Sneed, Esq.
Director of Legal Services
Education Professional Standards Board

Written by:

James M. Herrick
Assistant Attorney General

Syllabus:

Outside the grandfather clause, KRS 160.380(2)(g)
does not allow for any work by a certified employee
in a school where the employee is a relative of the
principal.

Statutes construed:
OAG cited:

KRS 160.380(2)(g), KRS 160.345(2)(f)

OAG 91-28

Opinion of the Attorney General
Alicia A. Sneed, Director of Legal Services for the Education Professional Standards Board, had requested an opinion from this office as to the application of a nepotism statute, KRS 160.380(2)(g), to teachers who are designated as “district-wide” or “itinerant”; i.e., who perform duties at multiple locations in a school district. Teachers designated as “district-wide” are hired directly by the superintendent of the school district pursuant to KRS 160.370, 160.380(2)(a), and 160.390(1), whereas teachers in a single school, known as “school-

OAG 11-001
Page 2

level” employees, are hired by the principal after consultation with the
site-based school council pursuant to KRS 160.345(h). We have received written comments from the Department of Education and the Office of Education Accountability. KRS 160.380(2)(g) provides, in pertinent part, as follows: 1.

2.

3.

No principal’s relative shall be employed in the principal’s school, except a relative who is not the principal’s spouse and who was employed in the principal’s school during the 1989-90 school year. No spouse of a principal shall be employed in the principal’s school, except: a. A principal’s spouse who was employed in the principal’s school during the 1989-90 school year for whom there is no position for which the spouse is certified to fill in another school operated in the district; or b. A principal’s spouse who was employed in the 1989-90 school year and is in a school district containing no more than one (1) elementary school, one (1) middle school, and one (1) high school. A principal’s spouse who is employed in the principal’s school shall be evaluated by a school administrator other than the principal.

As construed by this office in OAG 91-28, subsection 1 applies to both
classified employees and teachers (certified employees) and allows “no
conditions under which a classified spouse of a principal may work in
his or her spouse’s school,” while including a grandfather clause for
non-spouse relatives. Subsection 2 is a more specific provision allowing certain conditions under which principals’ spouses who are teachers may work in their schools, although those conditions are circumscribed by a similar grandfather clause. Non-grandfathered relatives, whether classified or certified, may not be employed in the principal’s school. The question presented is whether, outside the grandfather

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Page 3

clause, any circumstances exist under which itinerant teachers may
work in schools where a relative1 is serving as principal.
The phrase “employed in the principal’s school” is not defined in
the chapter, and we acknowledge its facial ambiguity as applied to itinerant teachers. We do not believe, however, that its proper interpretation turns on whether it is the principal or the superintendent who has the authority to hire the teacher. “To ‘employ’ is a word of more enlarged significance than the word to ‘hire.’” Barnes v. Indian Refining Co., 280 Ky. 811, 134 S.W.2d 620, 622-23 (1939) (quoting Texas Co. v. Wheeless, 187 So. 880, 883 (Miss. 1939)). The mere fact that a teacher may be hired by the superintendent and designated as an itinerant or district-wide employee does not mean that the teacher is not “employed in the principal’s school.” Rather, any teacher whose services are used in a particular school is employed in that school. We find it noteworthy that the statute uses the phrase “employed in the … school” (emphasis added) as opposed to “employed at the … school.” The preposition “at” is used in KRS 160.345(2)(f) when speaking of positions filled at the school level: After receiving notification of the funds available for the school from the local board, the school council shall determine, within the parameters of the total available funds, the number of persons to be employed in each job classification at the school. (Emphasis added.) Although the syntax and the context are not identical, it is significant that the legislature chose the phrase “at the school” to describe school-based positions. Since the same locative language is not used in KRS 160.380(2)(g), we are led to believe that the legislature contemplated the law’s application not merely to positions filled at the school level, but also to positions filled at the district level so long as the employee’s work is performed “in the … school.”

1

“Relative” is defined in KRS 160.380(1)(b) as “father, mother, brother, sister, hus-

band, wife, son, daughter, aunt, uncle, son-in-law, and daughter-in-law.”

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Page 4

The question is also raised whether there is any amount of work,
or any proportion of work, that a principal’s relative may perform in the
school without violating the intent of the statute. We can find no warrant in KRS 160.380(2)(g) for making any such allowance. Where the legislature “has made no exception to the positive terms of a statute, the presumption is that it intended to make none.” Manning v. Kentucky Bd. of Dentistry, 657 S.W.2d 584, 587 (Ky.App. 1983). Since the statutory language gives no basis on which to define a permissible amount or proportion of work for a relative to perform in the principal’s school, we can only draw the line at zero. The statute thus construed may be a blunt instrument for the purpose of combating nepotism, but there is no constitutional requirement for such legislative solutions to be precisely tailored to the problem; they need only be supported by a rational basis. Chapman v. Gorman, 839 S.W.2d 232, 240 (Ky. 1992). As we cannot supply qualifications to the statute which were not made by the General Assembly, Hatchett v. City of Glasgow, 340 S.W.2d 248, 251 (Ky. 1960), it is our opinion that KRS 160.380(2)(g) must be strictly construed. We are confirmed in this conclusion by the principles underlying nepotism laws in general. In Chapman, supra, the Supreme Court observed that laws of this type remove the threat of nepotism from public employment, an “irritant to taxpayers, [that] can create conflicts of interest and adversely affect the morale of other employees in the school system.” See Whateley v. Leonia Board of Education, 141 N.J.Super. 476, 358 A.2d 826, 828 (1976)…. Such statutes, one court has reasoned, reflect “the state’s interest in providing its children with a meaningful education,
[an interest that] is fully and directly served by preventing
conflicts in the administration of the educational system.”
Hamilton v. Board of Trustees of Oconee School District,
282 S.C. 519, 319 S.E.2d 717, 720 (Ct.App. 1984).

OAG 11-001
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839 S.W.2d at 240 (Additional citation omitted.) The Whateley case,
quoted by the Court in Chapman, identified the “irritant to taxpayers”
as consisting of “[t]he spectre as well as the fact of nepotism in public
employment.” 358 A.2d at 828. This “spectre” of nepotism or of conflict of interest can reasonably be presumed, in the intent of the legislature, to extend beyond the clear case where a relative spends the vast majority of the day or week working at the principal’s school, or is directly supervised or evaluated by the principal.2

Conclusion
It is therefore our opinion that a certified employee, not subject
to the grandfather clause in KRS 160.380(2)(g), may not be assigned
to work in a school where the employee is a relative of the principal,
regardless of the teacher’s “itinerant” or “district-wide” status. Any
amount or proportion of work in that principal’s school is prohibited by
the statute.

Jack Conway
Attorney General

James M. Herrick
Assistant Attorney General

2

The fact that a principal’s relative might be evaluated by someone other than the

principal would be no mitigating factor, since subsection 3 of KRS 160.380(2)(g) mandates this arrangement as a minimum precaution against nepotism even for spouses who are exempted under the grandfather clause.