Board election surveys

School board election surveys: whether to reply is a political choice, not a legal consideration

Board members and superintendents subscribing to KSBA’s e-News Headline or School News Bulletin Board clipping services will have seen the story out of Elizabethtown Independent where incumbent board members were asked by the local teachers’ union to complete a questionnaire. None did, and one member was quoted with questions about the legality of a sitting board member taking part in such a survey.

KSBA Legal Services Director Steve Kirby says that the question of questionnaires for elected board members is more a political issue than a legal one.

"The 1990 General Assembly attempted to address the permissible roles and prohibitions in board campaigns for board candidates, district employees and employee unions in KRS 161.164. In OAG 92-145, the Attorney General covered the practical application of the statute. While the prohibition of district employees being involved with board campaign 'activities' has been found to be unconstitutionally vague, [State Board of Elementary and Secondary Education v. Howard], 834 S.W.2d 657 (Ky. 1992), the remaining portions of the statute are still valid and enforceable. Since the Attorney General’s opinion was issued in 1992, Frankfort has provided little additional insight nor further addressed the issue of employee union activity in board elections.

"Under the statute, employees are presumably permitted to seek answers from board candidates, whether by personal conversations or surveys. On the other hand, board candidates are not required to respond to each and every question presented or to any survey if the candidate doesn’t wish to participate," Kirby said.

"If the questions or survey call upon the candidate to make promises or commit the candidate to particular courses of action, there are legitimate and substantial reasons why a candidate may not wish to do so," he said.

"First, a candidate shouldn’t commit upon a question on which all the facts may not be known. Later developments may cause a candidate to have to change direction based on statutory or constitutional obligations. The candidate will be viewed as having misled when that is not the case.

"Second, KRS 161.164 prohibits candidates from promising certain advantages in employment, such as pay or even employment itself, for the purpose of influencing the vote or political action of any person. Since a board member has a duty to act in the interest of the district as a whole, a candidate may believe that making a prior commitment to one segment can’t be made in good faith," Kirby said.

"Obviously, there may be First Amendment questions that occur, based upon the facts of a specific situation. For example, a candidate who responded that he or she favored raising teacher salaries to the average of surrounding districts is a response that is probably protected speech. But a candidate who responded with a promise to raise salaries for specific employees may be challenged as making an inappropriate commitment of future action," said Kirby.

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Kentucky School Boards Association

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