Request By:
Honorable Dan C. McCubbin
Atcorney at Law
Suite 546, Starks Building
455 S. Fourth Street
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; Robert L. Chenoweth, Assistant Attorney General
As an attorney for the Jefferson County Board of Education you have asked the Office of the Attorney General to consider the question of procedures necessary to be followed for reduction of administrative personnel in the Jefferson County school system due to budgetary reasons. The Jefferson County Board, as we understand it, desires not to terminate or suspend the contracts of administrative personnel in the school system but only to reduce by elimination of position the total number of administrative personnel in the system. You have asked specifically about the process for selection of specific personnel to be demoted once the administrative positions have been eliminated.
We have stated before that the elimination of administrative positions in a school is a prerogative of a local board of education. KRS 160.290, and see OAG 76-118. The position the Jefferson County Board finds itself in, while not entirely unique in nature, is still a matter infrequently considered. The reason the Jefferson County Board will be eliminating administrative positions is due to budgetary considerations. One statute seemingly applicable as you noted is KRS 161.800. However, as we stated in OAG 73-383, this statute is specified to apply when there must be a reduction of teaching personnel "by reason of decreased enrollment of pupils, or by reason of suspension of schools or territorial changes affecting the district." In that opinion we concluded that this statute did not apply in cases where the reduction of teaching personnel is necessary because of a shortage of funds. Moreover, this statute applies to the situation where a school board is reducing the number of certified employees through an act of suspension of contracts. The action to be taken by the Jefferson County Board of Education presently under consideration will not cause the certified employees who have previously held administrative positions to no longer have a contract with the board but will cause some certified employees not to be assigned an administrative position for the following school year. Thus, other than for purposes of persuasive reference, it is our conclusion that KRS 161.800 has no actual application to the process under consideration.
Since the board of education will be dealing with administrative personnel, it is critical that KRS 161.765 be considered. This statute governs the procedures to be followed for the demotion of administrative personnel. In OAG 77-157, copy attached, we concluded that KRS 161.765 requires a continuity in a particular school system as an administrator for three years and that these three years must be successive unless broken down by an intervening leave of absence under KRS 161.770, although the administrative position held need not be the same for the three years under consideration. The definition of "demotion" applicable to this statute is spelled out in KRS 161.720(9), which reads as follows:
"The terms 'demote' or 'demotion' for the purpose of KRS 161.765 shall mean a reduction in rank from one position on the school district salary schedule to a different position on that schedule for which a lower salary is paid. The terms shall not include lateral transfers to positions of similar rank and pay or minor alterations in pay increments required by the salary schedule. "
It is our understanding that since the elimination of the administrative positions under consideration is due to budgetary reasons, an individual who has held one of those administrative positions who will not be reassigned to an administrative position for the following school year will be receiving a lower salary. This action will be a demotion within the definition noted above.
In reducing the number of administrative personnel after the elimination of administrative positions we believe the school board must give first consideration to those individuals who have not completed three years of administrative service in the school system. These individuals may be recommended for demotion by the superintendent and upon approval of said recommendation by the board and by complying with the requirements of KRS 161.760(2), these individuals may be assigned a position in the school system with a reduction in their salary.
The more difficult situation is the manner in which those administrative personnel who have completed at least three years of administrative service in the school system may be demoted. This problem of which of these administrators will be recommended for demotion by the superintendent after there has been an elimination of administrative positions by the board is truly an administrative one. We know of no law which will give statutory direction on this matter. We strongly believe, nevertheless, that the process used to determine which individuals, who have held administrative positions, will be demoted must be objective, reasonable and nondiscriminatory. Certainly nothing less would be permitted by the United States District Court's desegregation orders applicable to the Jefferson County Schools.
We cannot over-emphasize that the process used concerning the matter under consideration is an administrative one subject to the exercise of good judgment and common sense by the superintendent and the board of education. Again, while there are no statutes giving direct guidance on this matter, we believe it advisable and that it will be helpful to borrow from the provisions of KRS 161.800 noted earlier in this opinion. That statute calls for the board "to suspend contracts in accordance with the recommendations of the superintendent of schools who shall, within each teaching field affected, give preference to teachers on continuing contracts and to teachers who have greater seniority. " Thus, we believe the process used to reduce administrative personnel having at least three years of administrative service after elimination of administrative positions could be fairly accomplished by establishing administrative "fields" and by giving preference to those individuals who have greater seniority within the established administrative fields. For example, if the board of education eliminates ten assistant principal positions, the "field" to be considered would be that of "assistant principal." Those individuals having served the fewest number of years as an assistant principal would be demoted from the administrative ranks in the school system. After timely notice as required by KRS 161.760(2), those individuals who had been demoted would then be subject to assignment in the school system upon recommendation of the superintendent and approval of the board.
You asked us to consider the issue of "bumping" as it might relate to the process for selecting persons to be demoted. We do not see any merit in the application of "bumping" to the process ultimately used. In the example used above, we cannot suggest that an assistant principal who is demoted due to low seniority as an assistant principal, who previously was a school counselor, should be entitled to enter that "field" of administrative service for consideration on the basis of seniority again. The practice of "bumping" would serve to increase the total number of administrative personnel affected by this need to reduce the administrative staff due to the budgetary crunch experienced in the Jefferson County Schools. In this regard, we again refer you to KRS 161.800 which would not permit "bumping" if the board were suspending contracts of teachers in various teaching fields according to their seniority.
Finally, of critical importance in whatever process of selection devised is that any reduction of responsibility of a school administrator which will be accompanied by a corresponding reduction in salary must be made and timely notice given no later than May 15. See KRS 161.760.