Request By:
Mr. Roy L. Winchester
Superintendent
Henry County Schools
New Castle, Kentucky 40050
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the Superintendent of the Henry County Schools you have asked the Office of the Attorney General to render an advisory opinion concerning a leave of absence issue regarding a Henry County school teacher. The background you provided us in your letter was that in August of 1978, a teacher in your school system related to you that she had accepted a teaching position in the Shelby County school system. The teacher also related that she may want to return to Henry County to teach after one year since she had continuing contract status in the Henry County Schools. The teacher further stated she would resign or ask for a one-year leave of absence after she received her contract from Shelby County.
You further informed us that prior to the August 15, 1978 Henry County board meeting you placed on the agenda to either accept this teacher's resignation or to discuss a leave of absence for her with the board. At the time of this board meeting you had not received anything in writing from the teacher asking for a leave of absence or her resignation and thus the board took no action. On August 21, 1978, the teacher reported to work in the Shelby County schools and on August 22, 1978, a teacher was employed to take her position in the Henry County system.
When the Henry County board held its regular September meeting you had still not received anything in writing regarding the teacher's resignation or a request for a leave of absence. In view of this situation you recommended to your board that the teacher in issue be terminated and the motion to that effect which was then made passed with a unanimous vote.
After the action of the board you contacted the teacher and told her of the board's decision. However, before a written notification to this effect was mailed to the teacher, the Henry County School Board chairman called a special meeting of the board to discuss the termination of the teacher. At this special meeting, the board voted to rescind their prior action concerning this matter and then made and passed a motion to grant the teacher a year's leave of absence.
Based upon the circumstances developed above, you have presented the following three questions:
1. Can a board of education grant a teacher a leave of absence to teach in another school system?
2. Can a board of education grant a leave of absence without the superintendent's recommendation?
3. Has the teacher in question been fired or does she have a one year's leave of absence which entitles her to a teaching position in Henry County for the 1979-80 school year?
As for your first question, we refer you to OAG 70-372 and OAG 73-377, copies attached. In the latter cited advisory opinion of this office we stated our opinion as follows:
". . . [I]t is our opinion that the board of education may grant a leave of absence to a teacher for up to two years for the purpose of furthering the teacher's education or to work elsewhere in the teaching profession. We think that the teacher would probably be allowed to work in any type of education related employment, such as the State Department of Education, Teachers' Retirement System, another school system and for a textbook company. The board may grant such a leave of absence even though the teacher states that he may not return to employment in the school district at the end of his leave of absence. Such a statement, however, could very well have an influence on the board's decision as to whether or not to grant the leave of absence. "
Thus, we do believe that KRS 161.770 which authorizes a local board of education, in its reasonable exercise of discretion, to grant a leave of absence for educational or professional reasons, including working elsewhere in the teaching profession.
In answer to your second question, we believe a local board of education may grant a leave of absence under KRS 161.770 without the local superintendent's recommendation. We do note, however, that under KRS 160.370 the local superintendent is to be the "professional advisor of the board in all matters." In those discretionary situations involving requests for leave for educational or professional reasons, we think a prudent board will seek the advice of its superintendent concerning the matter.
Your third question is the most difficult to answer. We believe a totally defensible position is that the teacher is not entitled to a teaching position in the Henry County school system for the 1979-80 school year. Our reasons for stating our response this way are several. First, under the facts you have given us, your conversation with the teacher broached two subjects - resignation or a leave of absence. This conversation we are presuming took place within a 30-day period prior to the opening of the Henry County schools' 1978-79 school term. KRS 161.780 provides, as amended in 1978, as follows:
"No teacher or superintendent shall be permitted to terminate his contract within thirty (30) days prior to the beginning of his school term without the consent of the board; any such teacher or superintendent shall be permitted to terminate his contract at any other time when schools are not in session by giving five (5) days' written notice to the employing board of education. Upon complaint by the employing board to the state superintendent of public instruction and after investigation by him, the certificate of a teacher or superintendent terminating his contract in any other manner than provided in this section may be suspended for not more than one (1) year."
Thus, if the teacher was going to resign at this time, such could not have been accomplished without the consent of the board.
Second, KRS 161.770(1) requires a teacher who desires a leave of absence to make a request for the leave in writing. The teacher in issue did not make any formal request for a leave, let alone one in writing, as we understand the facts. In OAG 70-372, supra, the case of Miller v. Noe, Ky., 432 S.W.2d 818 (1968), was referred to in which the Kentucky Court of Appeals declared that a teacher terminated his continuing service contract when he took a leave of absence without the consent of the board. Again, as we understand the facts, the teacher in issue began employment in the Shelby County schools not only without having gotten the consent of the Henry County board to terminate her contract but left without having been given a leave of absence since none had been requested. Based upon the teacher's actions as well as her failure to act as required by statute, we know of no legally supportable reason why the teacher should not be denied a teaching position in the Henry County schools for the next school year.
The reason your last question is difficult to answer is that irrespective of what the school laws support as a legal response, the Henry County board granted the teacher a leave of absence without deference to those school laws. While it is our belief such a handling of an important contractual matter is without excuse, we nevertheless are of the opinion under the circumstances developed in your letter that the teacher in issue may return to teaching service in the Henry County schools at the expiration of the leave of absence and will be entitled to resume the contract status she held prior to the leave.