Kansas Attorney General Opinion 2018-011

September 6, 2018
ATTORNEY GENERAL OPINION NO. 2018- 11
Gregory P. Goheen, Legal Counsel
Unified School District No. 500, Wyandotte County
McAnany, Van Cleave & Phillips, P.A.
10 E. Cambridge Circle Drive, Suite 300
Kansas City, Kansas 66103
Re: 	Schools—School District Board of Education Powers and Duties; General
Powers 	and 	Duties—School 	District 	Officers 	and 	Employees; 	Board
Members to Receive No Compensation; Retired Employee Serving as
Board Member; Incompatibility of Offices
Synopsis: 	Neither state statute nor the common law doctrine of incompatibility of
offices precludes a retiree from serving as a member of the school board
for the school district from which the retiree retired. 	Because benefits
received by a retiree of a unified school district from the Kansas Public
Employees Retirement System or the school district’s early retirement
program are earned during the retiree’s employment with the school
district and are not compensation for work or duties performed as a board
member, K.S.A. 2018 Supp. 72-1137 does not preclude a retiree from
receiving the benefits during the time the retiree is serving as a board
member. 	Cited herein: 	K.S.A. 2018 Supp. 72-1134; 72-1135; 72-1136;
72-1137; Kan. Const., Art. 6, § 5.
* 	* 	*
Dear Mr. Goheen:
As legal counsel for the Board of Education of Unified School District No. 500,
Wyandotte County (Kansas Ciy), you ask our opinion regarding whether a retiree of a
unified school district who is receiving compensation and benefits through the Kansas
Public Employees Retirement System (KPERS) or a school district’s early retirement
program, or both, may serve as a member of the Board.

Gregory P. Goheen
Page 2
In determining whether a person may serve in dual roles for a public governing body, it
must be determined whether such service is precluded by state law or the common law
doctrine of incompatibility of offices.
Statutory Provisions
Before determining whether the common law doctrine of incompatibility of offices
precludes serving in the dual positions, we first address whether such service is
governed by state statute. “The legislature decides who may qualify for public office. . .
. If the legislature has spoken, the statement supersedes common law, and the doctrine
of incompatibility of office does not apply.”1
Local public schools 	are “maintained, developed 	and 	operated 	by 	locally 	elected
boards.” 2 	A local board of education “shall appoint a superintendent of schools . . .
[and] may appoint one or more assistant superintendents of schools, supervisors and
principals.” 3 A local board shall also appoint a clerk 4 and a treasurer.5 Provisions in the
statutes authorizing the appointments expressly preclude the appointed persons from
being a member of the board. 6
Conversely, K.S.A. 2018 Supp. 72-1137 states:
In addition to the officers provided for in this act, the board of education of
any school district may appoint other officers and employees to serve at
the pleasure of the board. 	Such officers and employees shall receive
compensation fixed by the board. 	No member of a board of education
shall receive compensation from the school district for any work or duties
performed by him. 7
In determining whether K.S.A. 2018 Supp. 72-1137 precludes a retiree from a unified
school district from serving as a member of the board of education for the school district
and receiving compensation and benefits through KPERS or a school district’s early
retirement program, or both, we follow the rules of statutory construction.
The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. 	We first attempt to
ascertain legislative intent by reading the plain language of the statutes
and giving common words their ordinary meanings. 	When a statute is
plain and unambiguous, we do not speculate as to the legislative intent
1 Unified School District No. 501, Shawnee County v. Baker, 269 Kan. 239, 243 (2000).
2 Kan. Const., Art. 6, § 5.
3 K.S.A. 2018 Supp. 72-1134.
4 K.S.A. 2018 Supp. 72-1135.
5 K.S.A. 2018 Supp. 72-1136.
6 K.S.A. 2018 Supp. 72-1134 (“No person employed under the authority of this section shall be a member
of the board.”); K.S.A. 2018 Supp. 72-1135 (“The clerk shall not be a member of the board. . . .”); K.S.A.
2018 Supp. 72-1136 (“The treasurer shall not be a member of the board. . . .”).
7 Emphasis added.

Gregory P. Goheen
Page 3
behind it and will not read into the statute something not readily found in it.
But when the statute's language or text is unclear or ambiguous, we
employ canons of construction, legislative history, or other background
considerations to divine the legislature's intent and construe the statute
accordingly.8
The Legislature has neither defined the terms used in K.S.A. 2018 Supp. 72-1137, nor
included a provision expressly precluding persons appointed under the statute from
serving on the local board. Therefore, the terms are given their ordinary meanings.
In reviewing whether K.S.A. 2018 Supp. 72-1137 precludes a tenured teacher from
serving as a member of the board of education for the unified school district by which
the teacher is employed, the Kansas Supreme Court determined the statute “only
prohibits compensation for ‘work or duties’ performed as a board member.” 9 	“The . . .
language [in K.S.A. 2018 Supp. 72-1137] 10 stating no board member ‘shall receive
compensation from the school district for any work or duties performed by him’ raises
only the question of compensation—not whether one may serve.”11 	Thus, even if a
retiree is considered an officer or employee serving at the pleasure of the board, K.S.A.
2018 Supp. 72-1137 does not preclude the retiree from serving as a board member.
Determining whether K.S.A. 2018 Supp. 72-1137 prohibits a retiree who is serving on
the board from receiving compensation and benefits through KPERS or a school
district’s early retirement program, or both, requires determining whether the benefits
are compensation from the school district for work or duties performed as a board
member.
Public employment seldom pays as much as a comparable job in the
private sector. 	A pension to be received upon retirement is a prime
inducement in securing qualified workers and avoiding the expense of a
high 	turnover 	rate. 	Retirement 	benefits 	are 	a 	valuable 	part 	of 	the
consideration for entering into and continuing in public service. A member
of a governmental pension system has certain vested rights in the pension
plan because it is a vital part of the consideration for entering into and
performing under the employment contract.12
Benefits received by a retiree of a unified school district from KPERS or a school
district’s early retirement program are earned during the retiree’s employment with the
school district. 	They are consideration under the employment contract and would be
paid to the retiree even if the retiree performed no additional public service. 	The
8 Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918 (2013) (internal citations
and quotation marks omitted).
9 Baker, 269 Kan. at 244.
10 K.S.A. 72-8202e was recodified in July 2017 and is now K.S.A. 2018 Supp. 72-1137.
11 Baker, 269 Kan. at 245.
12 Kansas Public Employees Retirement System v. Reimer & Koger Associates, Inc., 262 Kan. 635, 646
(1997), quoting Brazelton v. Kansas Public Employees Retirement System, 227 Kan. 443,449 (1980).

Gregory P. Goheen
Page 4
benefits received from KPERS or a school district’s early retirement program are not
compensation for work or duties performed as a board member.
Finding no other applicable statutes that preclude a retiree of a school district from
serving on the board of education, we turn to the common law doctrine of incompatibility
of offices.
Common Law Prohibition
The common law doctrine of incompatibility of offices prohibits an individual from
holding more than one public office at the same time when there is an incompatibility
between the offices.13 “Offices are incompatible when the performance of the duties of
one in some way interferes with the performance of the duties of the other.”14 	The
Kansas Supreme Court long has applied the doctrine “where the nature and duties of
the two offices are such as to render it improper, from considerations of public policy, for
one person to retain both.”15
In Attorney General Opinion No. 2013-19, we stated:
The Kansas Supreme Court addressed the distinction between officers
and other employees in Durflinger v. Artiles.16 As summarized by Attorney
General 	Opinion 	No. 	91-11, 	Durflinger 	concluded 	that 	the 	essential
characteristics of public office are: (1) a position created by statute or
ordinance, (2) a fixed tenure, and (3) the power to exercise some portion
of [the] sovereign function of government. 	In addition, Durflinger cited an
earlier case holding that an officer has responsibility for results and the
power of direction, supervision, and control.17
The position of retiree does not possess any of the characteristics of a public office.
The positions of school board member and retiree are not two public offices performing
incompatible duties.
In Dyche v. Davis, 18 the Kansas Supreme Court determined the doctrine applies when a
person concurrently holds a public office and another position of public employment. 19
“It is inimical to the public interest for one in public employment to be both the employer
and the employee or the supervisor and the supervised.” 20 	The doctrine applies
irrespective of whether the person draws two salaries. 21
13 Baker, 269 Kan. at 249.
14 Dyche v. Davis, 92 Kan. 971, 977 (1914).
15 Baker, 269 Kan. at 248, quoting Abry v. Gray, 58 Kan. 148, 149 (1897).
16 234 Kan. 484 (1983) (disapproved on other grounds by Boulanger v. Pol, 258 Kan. 289, 292 (1995)).
17 Internal quotation marks omitted.
18 92 Kan. 971 (1914).
19 Baker, 269 Kan. at 248-49.
20 Baker, 269 Kan.at 239, Syl. ¶ 6.
21 Baker. 269 Kan.at 239, Syl. ¶ 5.

Gregory P. Goheen
Page 5
The Kansas Supreme Court in Unified School District No. 501, Shawnee County v.
Baker22 	reviewed 	whether 	the 	common 	law 	doctrine 	of 	incompatibility 	of 	offices
precludes one person from concurrently serving as a school board member and a
teacher in the same school district.
As we focus on the agreed facts before us, the inescapable conclusion is
that Baker's positions are incompatible. 	By assuming the role of teacher
and Board member, Baker occupies one position that is subordinate to the
other. 	As Board member she is the employer and as teacher, the
employee. In her capacity as Board member she sits on a policy-making
body 	that 	negotiates 	with 	the 	teachers' 	collective 	bargaining
representative, who is also her representative as a teacher. This is a clear
conflict of interest. Similarly, Baker is subject to discipline by the Board.
She may, under certain circumstances, be fired by it. 	The principal who
must evaluate Baker's performance as a teacher indirectly answers to
Baker as a board member. 	As Baker discharges her Board duties, her
actions, no matter how well-intentioned, will be colored by the conflict
inherent in her two positions. 23
The existence of an employer-employee relationship is based on “whether the employer
has the right of control and supervision over the work of the alleged employee, and the
right to direct the manner in which the work is to be performed, as well as the result
which is to be accomplished.” 24 	Retirement, however, is a voluntary termination of
employment or service upon reaching retirement age. 25 	Once a person retires, the
person is no longer obligated to perform duties or functions for the employer. 	The
employer does not have the right to control or supervise the retiree, or to terminate the
employment of the retiree. 	A retiree is not an employee of the school district. 	The
positions 	of 	school 	board 	member 	and 	retiree 	do 	not 	involve 	two 	public 	offices
performing incompatible duties.
Since the positions of school board member and retiree are neither two public offices
performing incompatible duties nor involve an employer-employee relationship, the
common law doctrine of incompatibility of offices does not prohibit a retiree from serving
as a member of the school board for the school district from which the retiree retired.
In review, neither state statute nor the common law doctrine of incompatibility of offices
precludes a retiree from serving as a member of the school board for the school district
from which the retiree retired. Because benefits received by a retiree of a unified school
district from KPERS or the school district’s early retirement program are earned during
the retiree’s employment with the school district and are not compensation for work or
duties performed as a board member, K.S.A. 2018 Supp. 72-1137 does not preclude a
22 269 Kan. 239 (2000).
23 Baker, 269 Kan. at 251.
24 Craig v. FedEx Ground Package System, Inc., 300 Kan. 788, 794 (2014), quoting Jones v. City of
Dodge City, 194 Kan. 777, 780 (1965).
25 See McIntosh v. Sedgwick County, 32 Kan.App.2d 889, 896 (2004).

Gregory P. Goheen
Page 6
retiree from receiving the benefits during the time the retiree is serving as a board
member.
Sincerely,
Derek Schmidt
Attorney General
Richard D. Smith
Assistant Attorney General
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