Request By:
Mr. Carl W. Kreisler
Professor of Higher Education
Department of Educational Administration and Foundations
Western Kentucky University
Bowling Green, Kentucky 42101
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter presenting the following fact situation and questions:
"May a Board of Regents in a state supported university renegotiate the president's contract during the term of the current contract for an additional four (4) years?
I know that this is not permissible as the law applies to public school superintendents, but I can find nothing as it applies to higher education.
Specifically, what is the law concerning the board's power to renegotiate a contract with the president that would endure beyond the term of any of the existing board members?"
Under the statutes applicable to state colleges and universities, including Western Kentucky University (KRS 164.290), we first direct your attention to KRS 164.360, dealing in part with the appointment and removal of the president. Subsection (1) of KRS 164.360 states that the board of regents may appoint a president and fix his tenure of service, while subsection (2) provides that "no person shall be employed for a longer period than four (4) years . . . ."
KRS 164.365 provides in part that anything in the statute of the commonwealth to the contrary notwithstanding, the power and control of appointments, qualifications, salaries and compensation payable out of the state treasury or otherwise, promotions, and official relations of all employes of Western Kentucky University, as provided in KRS 164.350 and 164.360 shall be under the exclusive jurisdiction of the governing board of that institution. KRS 164.350, dealing with the general powers of the board of regents, states in part that the government of Western Kentucky University is vested in its board of regents. The board of regents shall constitute a body corporate, with the usual corporate powers, and with all immunities, rights, privileges and franchises usually attaching to the governing bodies of educational institutions.
By way of comparison you may wish to examine the statutes applicable to the University of Kentucky. See, for example, KRS 164.130 (government of the university vested in a board of trustees) ; KRS 164.160 (board of trustees shall be a body corporate, with the usual corporate powers, and shall possess all the immunities, rights, privileges and franchises usually attaching to the governing bodies of educational institutions); KRS 164.220 (the board of trustees may appoint a president - note that there is no provision prohibiting employment for a period longer than four years); KRS 164.225 (board to have exclusive jurisdiction of appointments) , and KRS 164.230 (removal by the board of professors, officers and employes).
By your reference to the appointment of superintendents of schools, we presume you have in mind the provisions of KRS 160.350. While we have not found any cases interpreting KRS 164.360 within the context of the questions you have presented, there are several cases dealing with KRS 160.350, some of which are:
Board of Education of Pendleton County v. Gulick, Ky., 398 S.W.2d 483 (1966);
Maynard v. Allen, 276 Ky. 485, 124 S.W.2d 765 (1939);
Farley v. Board of Education of Pike County, Ky., 424 S.W.2d 124 (1968);
Childers v. Pruitt, Ky., 511 S.W.2d 233 (1974);
Board of Education of McCreary County v. Nevels, Ky., App., 551 S.W.2d 15 (1977).
After examining KRS 160.350 and the above-mentioned cases, along with the statutes applicable to the board of regents of Western Kentucky University and the appointment of a university president (KRS 164.350, 164.360 and 164.365), it is our opinion that the provisions relating to the appointment of a school superintendent are separate and distinct from those involving the appointment of a president by the board of regents. Not only is the board of regents given exclusive jurisdiction over the appointment of the university president notwithstanding any other statutory provisions, but the board is a body corporate with all immunities, rights, privileges and franchises usually attaching to the governing bodies of educational institutions. Thus, the statutes applicable to colleges and universities, as set forth in KRS Chapter 164, are not dependent upon, subordinate to, or governed by the interpretation of those statutes applicable to school districts. Each of the groups of statutes is unique to its sector of the educational system.
Further emphasizing that the provisions applicable to the appointment of school superintendents and those concerning the appointment of a president by the board of regents are separate and not dependent, one upon the other, are the different ways the General Assembly provided for those appointments. KRS 160.350 refers to a "term" of one, two, three or four years for the superintendent of schools which begins on July 1 and ends on June 30. KRS 164.360 does not use the word "term" but merely states that no person shall be employed for a longer period than four years. Furthermore, there is no requirement that the employment commence on a specific date or terminate on a specific date, only that such employment not exceed four years.
In conclusion, it is our opinion that, pursuant to KRS 164.360, the board of regents of the state colleges and universities, as defined in KRS 164.290 and 164.293, may appoint a president for not more than a four-year period. Where a president is serving a period of employment for a period up to four years, the board may, prior to the expiration of that period, renegotiate the president's length of employment so long as the length of employment agreed upon never exceeds a total period greater than four years. If the board decides to reemploy the president for a period of time not to exceed four years, it need not wait until the initial period of employment expires before rehiring the president. The board, within a reasonable time before the end of the first period of employment, may rehire the president for another term of employment not to exceed four years assuming the term of the appointing body will not expire prior to the time the vacancy will occur. In absence of a case to the contrary, it is our opinion that KRS Chapter 164 contains the provisions applicable to the state's colleges and universities, and those KRS chapters pertaining to the elementary and secondary school systems are not controlling in regard to the questions you have raised.