Can a Kentucky school board member also serve on a water district board?

Plain-English summary

The Public Service Commission asked whether one person can sit on a local board of education and also serve as a commissioner of a water district created under KRS Chapter 74. Kentucky has rules against holding two offices that conflict, so the question was whether these two seats clash.

The Attorney General concluded they do not. A board of education member is treated as a state officer under Kentucky law. The incompatibility rules in Section 165 of the Kentucky Constitution and KRS 61.080(1) bar a person from holding a state office at the same time as a city or county office. But a water district is neither a city nor a county. It is a separate political subdivision created by statute, so a water district commissioner is not a city or county officer. That means the dual service does not run afoul of Section 165 or KRS 61.080(1).

The opinion also addressed KRS 61.080(6), which bars holding a state office and an appointed office of a taxing special purpose governmental entity at the same time. A water district charges rates for water service, but the opinion explained that water rates are fees for a service, not taxes. Because the water district does not levy taxes, that provision did not apply either. Finally, the opinion checked the common-law test for "functional" incompatibility (whether the duties of the two offices conflict in practice) and found no conflict, while noting that a member of both boards should step aside from voting on any matter that arises between the school board and the water district.

What this means for you

School board members and water district commissioners

Under this opinion, holding a seat on a board of education and a seat on a KRS Chapter 74 water district board at the same time is permitted. Section 165, KRS 61.080, and the common law do not make those two offices incompatible.

People serving on both boards

The opinion holds that a member who serves on both boards should refrain from voting or otherwise participating in any matter that arises between the school board and the water district, citing the public-policy concern recognized in OAG 82-635.

Public Service Commission and government attorneys

The opinion treats a water district as a statutory political subdivision and a special purpose governmental entity that charges rates rather than levies taxes, which is why KRS 61.080(6) did not bar the dual service.

Common questions

Q: Can the same person serve on a school board and a water district board in Kentucky?
A: Yes, according to this opinion. The Attorney General found no constitutional, statutory, or common-law incompatibility between the two offices.

Q: Why doesn't the rule against dual office-holding apply here?
A: The opinion explains that the constitutional and statutory bars cover holding a state office alongside a city or county office. A water district is its own political subdivision, not a city or county, so the bar does not reach it.

Q: Does it matter that the water district charges for water?
A: The opinion treats water rates as fees for a service, not taxes. Because KRS 61.080(6) only bars dual service where the special purpose entity has taxing authority, charging rates did not create a conflict.

Q: Are there any limits on the person serving on both boards?
A: Yes. The opinion advises that a member of both boards should not vote on any matter arising between the school board and the water district.

Background and statutory framework

Section 165 of the Kentucky Constitution and KRS 61.080(1) prohibit a person from simultaneously holding a state office and a city or county office. The opinion treats a board of education member as a state officer, citing Bd. of Ed. of Louisville v. Society of Alumni of Louisville Male High Sch. A water district created under KRS Chapter 74 is a political subdivision created by statute, not a city or county, per Louisville Extension Water Dist. v. Diehl Pump & Supply Co. KRS 61.080(6) separately bars holding a state office and an appointed office of a taxing special purpose governmental entity, but the opinion concluded that water rates are fees, not taxes, citing Long Run Baptist Ass'n v. Louisville & Jefferson Cnty. Metropolitan Sewer Dist., Dickson v. Jefferson Cnty. Bd. of Ed., and Veail v. Louisville & Jefferson Cnty. Metropolitan Sewer Dist., along with the utility-rate provisions in KRS 278.010(3)(d) and KRS 278.030(1). On common-law incompatibility, the opinion applied the functional-conflict test from LaGrange City Council v. Hall Bros. Co., Hermann v. Lampe, and Adams v. Com. ex rel. Buckman, and found no conflict.

Citations and references

Constitution and statutes:
- Ky. Const. § 165; KRS 61.080(1), (6)
- KRS Chapter 74 (water districts)
- KRS 278.010(3)(d); KRS 278.030(1)

Cases:
- Bd. of Ed. of Louisville v. Society of Alumni of Louisville Male High Sch., 239 S.W.2d 931 (Ky. 1951)
- Louisville Extension Water Dist. v. Diehl Pump & Supply Co., 246 S.W.2d 585 (Ky. 1952)
- Long Run Baptist Ass'n, Inc. v. Louisville & Jefferson Cnty. Metropolitan Sewer Dist., 775 S.W.2d 520 (Ky. App. 1989)
- Dickson v. Jefferson Cnty. Bd. of Ed., 225 S.W.2d 672 (Ky. 1950)
- Veail v. Louisville & Jefferson Cnty. Metropolitan Sewer Dist., 197 S.W.2d 413 (Ky. 1946)
- LaGrange City Council v. Hall Bros. Co. of Oldham Cnty., Inc., 3 S.W.3d 765 (Ky. App. 1999)
- Hermann v. Lampe, 194 S.W. 122 (Ky. 1917)
- Adams v. Com. ex rel. Buckman, 268 S.W.2d 930 (Ky. 1954)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2021-06.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
August 3, 2021
OAG 21-06
Subject: Whether membership on a Board of Education is incompatible with membership on a water district board created under KRS Chapter 74.
Requested by: J.E.B. Pinney, Acting General Counsel, Public Service Commission
Written by: James M. Herrick, Assistant Attorney General
Syllabus: Membership on a Board of Education is not incompatible with membership on a water district board under Section 165 of the Kentucky Constitution, KRS 61.080, or the common law.

Opinion of the Attorney General

The Public Service Commission ("Commission") asks whether a member of a Board of Education may also serve as a commissioner of a water district created under KRS Chapter 74 or whether those positions are incompatible. For the reasons below, it is the Attorney General's opinion that membership on a Board of Education is not incompatible with membership on a water district board under Section 165 of the Kentucky Constitution, KRS 61.080, or the common law.

Under Section 165 of the Kentucky Constitution and KRS 61.080(1), no person may simultaneously serve as an officer or employee of any city or county and as a state officer, deputy state officer, or member of the General Assembly. A member of a board of education is considered a state officer under Kentucky law. See Bd. of Ed. of Louisville v. Society of Alumni of Louisville Male High Sch., 239 S.W.2d 931, 933 (Ky. 1951). But a water district is neither a city nor a county. Instead, a water district is a political subdivision created by statute. See Louisville Extension Water Dist. v. Diehl Pump & Supply Co., 246 S.W.2d 585, 586 (Ky. 1952). Thus, a commissioner of a water district is neither a city officer nor a county officer. See OAG 82-635 (finding that a city council member may serve on a county water board); OAG 80-234 (finding that service on a water board is not incompatible with employment by a public school district). Thus, the dual board membership would not violate Section 165 or KRS 61.080(1).

KRS 61.080(6) also provides that "[n]o 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 specifically required by statute. A water district is a special purpose governmental entity authorized to charge rates for water service. See KRS 278.010(3)(d) (defining "utility" to include entities furnishing water to the public for compensation); KRS 278.030(1) (authorizing a utility to charge "fair, just and reasonable rates for the services rendered"). But water rates and other utility rates are not taxes. "A tax is universally defined as an enforced contribution to provide for the support of government, whereas a fee is a charge for particular service." Long Run Baptist Ass'n, Inc. v. Louisville & Jefferson Cnty. Metropolitan Sewer Dist., 775 S.W.2d 520, 522 (Ky. App. 1989) (citing Dickson v. Jefferson Cnty. Bd. of Ed., 225 S.W.2d 672 (Ky. 1950)); see also Veail v. Louisville & Jefferson Cnty. Metropolitan Sewer Dist., 197 S.W.2d 413, 418 (Ky. 1946) ("Charges for sewer service are not taxes, any more than . . . water rents"). So KRS 61.080(6) does not prohibit a school board member from serving as a water district commissioner.

The lists of incompatible offices set forth in Section 165 and KRS 61.080 are not exhaustive. LaGrange City Council v. Hall Bros. Co. of Oldham Cnty., Inc., 3 S.W.3d 765, 769 (Ky. App. 1999) ("The constitutional and statutory enumerations of incompatible offices are not the exclusive instances of incompatibility."). Besides constitutional and statutory incompatibility, the common law also prohibits individuals from occupying functionally incompatible positions. Id. Positions are functionally incompatible when they are "subordinate[d] to each other in a way that would produce a presumption that the duties of one could not be executed with impartiality and honesty" or when "the multiplicity of business [is] such that [one person] could not execute both [functions] . . . with care and ability." Hermann v. Lampe, 194 S.W. 122, 126 (Ky. 1917). Stated otherwise, functional incompatibility exists "when the two offices are inherently inconsistent or repugnant, or when the occupancy of the two offices is detrimental to the public interest." Adams v. Com. ex rel. Buckman, 268 S.W.2d 930, 931 (Ky. 1954).

There is no indication that service as a member of a school board and as a commissioner of a water district are incompatible at common law. The positions are not subordinated to each other. And there is no suggestion that an individual could not execute the functions of both boards with the requisite "care and ability." Hermann, 194 S.W. at 126. A member who serves on both boards should, however, refrain from voting or otherwise participating in any matter arising between the school board and the water district. See OAG 82-635 (observing that it "would be against public policy" for a person serving on a city council and a water district board to participate in any matter arising between the two entities).

Daniel Cameron
Attorney General
James M. Herrick
Assistant Attorney General