Request By:
Mr. Michael W. Wooden
4540 Park Boulevard
Louisville, Kentucky 40209
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As a member of the Jefferson County Board of Education you have requested an opinion from the Office of the Attorney General with respect to a motion passed by the Board on January 9, 1978. The motion related to one passed at the same Board meeting which created the position of chief deputy superintendent. The text of the motion in question was related to us in your letter as follows:
"It was moved by Michael Wooden, seconded by Lyman Johnson, that the chairman and the superintendent, after consulting with the board members, shall jointly appoint an advisory search committee of no more than five (5) and no less than three (3) and that the superintendent will submit the names agreed upon to the board for approval. The superintendent will be an ex officio member of this committee." (Emphasis in original.)
You stated this motion carried by a vote of 9 to 2. The specific questions you have with regard to this motion were stated by you as follows:
1. Does this motion in any way go beyond the scope of the board's authority as defined in KRS 160.290?
2. Does this motion in any way limit the authority of the superintendent as defined in KRS 160.380?
You noted that the Board understands that all appointments of school employes shall be made only upon the recommendation of the superintendent of schools subject to the approval of the Board.
Before responding to your two questions, we wish to point out that an opinion request on this same matter has been presented by Honorable Kyle T. Hubbard as the attorney for the Jefferson County Board of Education. The two issues for which he requested an opinion were stated as follows:
1. Whether a Board of Education, in appointing a committee to search for, screen, and determine the qualifications of all applicants for the position of a Deputy School Superintendent, infringes upon the powers and responsibilities of the Superintendent who, pursuant to KRS 160.380, must make all recommendations for appointments subject to the approval of the Board.
2. Whether the Superintendent can waive, or abrogate, his statutory authority and responsibility, pursuant to KRS 160.380, to make all recommendations for appointments to the school district, by voluntarily serving, on an ex-officio basis, on a committee that searches for, interviews, and screens prospective applications for the position of Deputy School Superintendent.
We view the issues and the applicable law relating to these issues expressed in the two letters to be so nearly the same to permit this singular response.
The first issue when stripped to the core is whether a local board of education can legally appoint a committee, the function of which would be advisory in nature with respect to the search for qualified individuals to fill the newly created position of chief deputy superintendent. Such a committee could only be advisory in nature. The assistance this committee would provide relates specifically to an obligation that is mandated to be carried out by a superintendent of local schools. KRS 160.380. Nevertheless, the work of such a committee would also ultimately relate to a proper concern of the local board. Each local board of education is responsible for the management and control of the school system. KRS 160.160; 160.290. In KRS 160.290(1) it is provided that: "Each board shall exercise generally all powers in the administration of its public school system, appoint such officers, agents and employes as it deems necessary and proper, prescribe their duties, and fix their compensation and terms of office." Subsection (2) of this same statutory provision mandates each local board to adopt rules and regulations concerning such matters as "the qualification and employment of teachers. " Administrative personnel is included within the meaning of the word "teacher. " Thus, it is our opinion that a local board of education may appoint a committee concerning any matter that relates to a proper subject of inquiry by it. An advisory search committee relates to a proper subject of concern of a local board.
The more important issue, however, taking into consideration our response regarding the first issue raised here, is the relationship this committee may legally have to the statutory responsibility of the local superintendent concerning a recommendation of an individual to the board to fill a position created by the board. Digressing slightly from this issue, we believe it important to note that a local board of education may create an administrative position without any recommendation of the superintendent. OAG 77-114, 76-118, and 73-378. Also, the board may adopt a policy of prescribing higher qualifications for employes to be employed by it than are required bystatute or state regulation. See Daviess County Board of Education v. Vanover, 219 Ky. 565, 293 S.W. 1063 (1927); OAG 61-413 and KRS 160.290(2).
Once a position is created and qualifications established, the power and authority to make a recommendation of an individual to the school board for employment in the school system, rests exclusively with the local superintendent. KRS 160.380 and see OAG 77-114, supra. Just as a board of education may not legally delegate to a committee or an individual the authority to perform acts solely within the statutory province of the board, neither may the superintendent delegate, waive or abrogate his personnel recommendation function. In the end it is the superintendent alone who decides who will be recommended to the board to fill a position. Thus, we are convinced that while an advisory search committee may be established by the board to assist the superintendent in the very important task of seeking out qualified individuals for a position in the school system, any work product of such a committee would be purely and unequivocally advisory in nature. That is, the superintendent is not bound by or in fact need be in any way influenced by the work product of the committee.
Therefore, in summary, we do not see that school board action of establishing an advisory search committee would trespass or infringe upon the bounds of the legal authority concerning a personnel recommendation which is vested by statute in the local school superintendent. Such a committee and the services it may provide should be viewed in the spirit in which we trust it would be created -- as a resource to be utilized by the superintendent in accomplishing a most important task, the onus of which weighs alone on the superintendent's shoulders.