Request By:
Honorable Alva A. Hollon, Jr.
Attorney at Law
Adams Building
Box 779
Hazard, Kentucky 41701
Opinion
Opinion By: Robert F. Stephens, Attorney General; Robert L. Chenoweth, Assistant Attorney General
As counsel for the Perry County Board of Education you have asked the Office of the Attorney General to consider three questions which you stated arose at a recent special called meeting of the board. The questions you have presented are as follows:
1. Does a local superintendent of schools have to make a recommendation for the rehiring of nontenured school teachers prior to April 30?
2. What procedure must be followed to abolish the position of Assistant Superintendent of schools in a local district?
3. What procedure must be employed to remove a local Board of Education secretary who is in the midst of a four-year term?
As concerns your first question, you suggest there exists a conflict between KRS 160.380 and KRS 161.750. It is our opinion there is no conflict. KRS 160.380 provides in pertinent part:
"All appointments, promotions and transfers of principals, supervisors, teachers and other public school employes shall be made only upon the recommendation of the superintendent of schools, subject to the approval of the board."
KRS 161.750, as amended by the 1976 General Assembly, Regular Session, reaffirms the statutory responsibility the superintendent has concerning recommending teaching personnel. While KRS 161.750 does not explicitly so provide, implicitly under the provisions of this statute, in a renewal of a nontenured teacher's contract, if the superintendent desires to have the contract renewed, he need take no action nor does the board and by operation of law, after April 30, the teacher will be "deemed re-employed under the provisions of KRS 161.720 to 161.810 for the succeeding school year at the same salary plus any increment or decrease as provided by the salary schedule. . . ." KRS 161.750(1). The significant difference in the law after the 1976 amendments is that in a renewal of a limited contract situation, if the superintendent recommends to the board the contract not be renewed, the board has the option of either approving this recommendation not to renew, after which would follow timely notice to the teacher of the nonrenewal of the teaching contract, or, the board of education may reject the recommendation of the superintendent not to renew, which action will give the teacher under consideration a contract for the following school year and possibly even a continuing service status contract if the requirements for same have been fulfilled. KRS 161.750(2), (3).
Thus, in answer to your first question, it is the opinion of this office that in a renewal of a limited contract situation, the absence of a recommendation to the board not to renew must be considered as a positive recommendation for renewal of the contract and those teachers in this situation would have a teaching contract for the ensuing year. It is our suggestion, however, that the superintendent of schools make recommendations both for renewal and for nonrenewal as he or she sees fit as concerns limited contract teachers. Those teachers who have been recommended for renewal of their contracts can formally have the recommendation approved by the board and those not recommended for renewal must be considered by the board as required by statute as noted above.
Enclosed are photocopies of the two more recent opinions of this office wherein KRS 161.765 was discussed, OAG 77-157 and 77-282. Also enclosed is a photocopy of OAG 76-118. In this opinion the office concluded that the creation or elimination of administrative positions in a school system was left to the reasonable discretion of each local board of education and a recommendation on this matter was not required from the superintendent. The three opinions referred to above, we believe, are dispositive of your second question.
Of importance in the consideration of your last question is KRS 160.440. This statute authorizes a local board of education to appoint its superintendent as secretary of the board. The appointment of the superintendent as secretary is a separate contractual proposition from that involved in the position of the superintendent. While the term as secretary may, it need not parallel the term as superintendent. Thus, if a board wishes to break the contract for the secretary position but not the contract as superintendent of schools, when the two positions are held by the same person, we believe the usual contract law applicable to rescission must be considered.