Request By:
Mr. Jerry Alleyne
Kentucky Education Association
1389 Alexandria Drive, # 3
Lexington, Kentucky 40504
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
You have requested an opinion from the Office of the Attorney General regarding a "communications procedure policy." You stated such a policy was being adopted by local school boards throughout the state and that for the most part these policies follow a draft proposal policy distributed to the local boards in the state by the Kentucky School Boards Association for study and discussion. You presented for our consideration a policy of this nature which has been adopted by one of the public common school systems in the Commonwealth.
The problem you have presented to us deals with the so-called "Level 4" communication. You stated this part of the policy presents a problem as you see it in that the permissibility of an employe of the Board of Education to appear before the Board regarding a grievance is dependent solely upon the desires of the Board. You stated it seemed to you that if the Board has the power to resolve the grievance, the employe should have the right to appear before that Board to present his or her case as the final step in the procedure. You ask this question:
"Can a local Board of Education deny an employee the right to appear before that body when the employee is seeking to have a grievance resolved?"
So as to be better able to perceive the Level 4 under consideration we believe it is necessary to look at all four of the levels of the communication policy. The policy in this part reads as follows:
"C. Levels of Communication
Level 1
An employee shall present his/her initial written communication to the employee's immediate supervisor. The supervisor shall discuss with the employee the nature of the communication and any action that the supervisor believes should be taken to resolve the concern of the employee. The supervisor shall provide a written response to the employee no later than ten (10) days after receipt of the employee's initial communication.
Level 2
If the employee is dissatisfied with the response received from his/her immediate supervisor, the employee may present his/her written communication to the designated administrator or his/her designee at the next higher level of administrative authority.
The designated administrator or his/her designee will investigate the communication, review previously presented information and the supervisor's response, and shall provide a written response to the employee no later than ten (10) days after receipt of the employee's communication at Level 2.
Level 3
If the employee wishes further review of his/her communication, the written communication may be presented to the Superintendent of Schools or his/her designee. The Superintendent or his/her designee shall review previously presented information and administrative responses, and conduct any necessary investigations. The Superintendent shall provide a written response to the employee no later than ten (10) days after receipt of the employee's communication at Level 3.
In rare instances it may be appropriate for the communicator to give his/her communication directly to the Superintendent thus bypassing Levels 1 and 2 of this procedure. This action shall be taken only in those rare instances where the matter communicated is of such a personal and private nature that it cannot be effectively communicated at Levels 1 and 2; or, in those instances where the nature of the communication would require the initial response of the Superintendent. The Superintendent reserves the right to redirect the communicator to the appropriate level.
Level 4
If the employee, after reviewing the Superintendent's response, desires direct communication with the Board of Education, the employee may present his/her written communication to the Superintendent for transmittal to the Board of Education.
The Superintendent must receive the communication no later than five days prior to the meeting of the Board at which the employee wishes the communication presented.
If the Board of Education feels a verbal presentation by the employee could be helpful, the employee will be afforded an apportunity to appear before the Board for relevant discussion of the employee's communication. If the employee does not wish to make a verbal presentation, the employee's right to refrain from such activity will be respected.
The Superintendent or his/her designee shall present the communication to the Board of Education at its next regularly scheduled meeting. The Board of Education will consider the communication, and will provide the employee a written response within ten (10) days after the next regularly scheduled meeting of the Board, following the meeting of the Board at which the communication was initially presented. The decision of the Board of Education shall be final." Before going through a consideration of these levels, it is our belief that a communication policy may be quite useful in fostering an ongoing positive dialogue and relationship among employees, administrators and the school board. Moreover, it would seem that the communication policy in question overall can be effectively used for the above purpose. However, it is our opinion that the "Level 4" communication impermissibly stifles the exercise of constitutionally protected rights.
The intent of the communication policy is written to be that of "improv(ing) the opportunities for an employee to initiate ideas, suggestions, input or relevant information to the attention of the administrative staff and/or the Board of Education. . . ." Also, the policy states that it is to be "utilized in the event an employee wishes to question the application of a Board of Education policy, administrative rule or regulation. . . ." The "initial level" of the policy provides for a written communication from the employee to that employee's immediate supervisor. The policy further states at this level that "the supervisor shall discuss with the employee the nature of the communication and any action that the supervisor believes should be taken to resolve the concern of the employee." We view this sentence of the policy to provide for verbal discussion between the supervisor and the employee. Levels 2 and 3 authorize progressive "appeals" of the immediate supervisor's response to the employee's communication. The employee personally may present his or her written communication to the administrator and superintendent of schools, respectively, covered by these sections of the policy. While there is no language in these two levels of the policy specifically so providing, it is trusted that an opportunity would be afforded the employee to verbally discuss the written communication at these two levels.
The fourth level is the end of the line - the buck stops with the local Board of Education. This is as it should and must be in that the local Board of Education has the authority over the control and management of the school and the duty to adopt rules and regulations governing various aspects of the schools in the school district. KRS 160.290. It is recognized that the Board is busy but it does have an obligation to communicate with its employees. While Level 4 does permit communication to the Board, written communication is to be presented to the superintendent for transmittal to the Board. The superintendent is the individual who will have just rejected the communication of the employee. The Level 4 policy provision appears to prohibit an employee from personally presenting the written communication to the Board and from then verbally discussing the matter with the Board. Verbal communication is dependent on whether the local Board "feels a verbal presentation by the employee could be helpful. " We do not believe this policy may prohibit or should the Board desire to foreclose the opportunity for oral supplementation and explanation of the written communication by the employee. Both the state and federal Constitutions protect freedom of speech and the right to petition the government. Kentucky Constitution, Bill of Rights, Section 1, and United States Constitution, First and Fourteenth Amendments. We see no danger which would justify the abridgement of these rights. See Madison Sch. Dist. v. Wisconsin Emp. Comm'n., 429 U.S. 167 (1976).
It strikes us that the flaw noted in Level 4 of the policy was probably not really intended but exists due to "loose" drafting of the policy. Our belief in this regard is supported by a paragraph in a document entitled "Administrative Guidelines for Implementing a Communications Policy in School Districts," which accompanied the distribution of the draft proposal of the communication policy. This paragraph reads as follows: "When the employee presents the communication to the administrator, the administrator should review the communication with the employee. Both parties should arrive at a common understanding of the meaning and intent of the communication." If there is going to be a meaningful dialogue between the school employees, their administrators or the school board, it would seem necessary for a meeting of the minds on the nature of the matter under question, be it an idea, suggestion, criticism or complaint. It is frequently very difficult to put in writing what is totally entailed in an idea and the same is the case with a complaint. Modifying Level 4 of the communication policy a complaint. Modifying Level 4 of the communication policy to permit the employee who has received a negative response from the superintendent, or the Level 3 designee to personally, in the period of time designated, present a written communication to the local school board, and then to permit the employee, if the employee so desires, to briefly verbally discuss the matter with the board, is suggested.