Request By:
Mr. E. C. Grayson
Superintendent
Jefferson County Public Schools
3332 Newburg Road
Louisville, Kentucky 40218
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the Superintendent of the Jefferson County Schools you have asked the Office of the Attorney General to render an advisory opinion regarding several questions on the protection afforded to certified school administrators under KRS 151.720 and KRS 161.765. Your questions were stated in your letter to this office as follows:
1. Does a certified administrator - Superintendent, Director, Supervisor, Principal, Assistant Principal, as defined in KRS 161.720 have "tenure" (cannot be demoted without compliance with procedures prescribed in KRS 161.765)?
2. If so, may a certified administrator (Assistant Superintendent, Director, Supervisor, etc.) be demoted for any reason other than provisions listed under KRS 161.765?
3. If KRS 161.765 means that certified administrators have "tenure" after three (3) years in their respective positions, can an administrator who is assigned to a position of lower rank, i.e., Assistant Superintendent to Director, have his/her salary reduced to the level prescribed in the Board adopted salary schedule for the reassigned position (Director).
4. If an Assistant Superintendent is assigned a Director level position, may the person's title be changed to the title of the position to which the "tenured" administrator is reassigned, assuming the salary is maintained at the Assistant Superintendent level.
In response to your first question we must first point out that a superintendent is specifically excluded from the definition of the term "Administrator" in KRS 161.720(8). Secondly, KRS 161.765 is not a "tenure" statute although the Kentucky Court of Appeals has inadvertently referred to it as such in at least one opinion. See Harlan County Bd. of Educ. v. Stagnolia, Ky. App., 555 S.W.2d 828 (1977), and OAG 78-793, copy attached. Otherwise, in response to your question, we believe it clear that KRS 161.765 provides administrative procedural due process which must be complied with before a certified employe who has been an administrator in a school system for three years may be demoted. See OAG 78-793, supra.
As to your second question, KRS 161.765 requires a "written statement of grounds for demotion. " (Emphasis supplied.) We agree that KRS 161.765(2)(b)1 does smack of the concept that a demotion will only result as a form of disciplinary action for unwarranted conduct; but we do not believe such a constrictive view can legitimately be made. We are of the opinion that a demotion can be made, after a full following of the procedures mandated in the statute, on strictly economic and nonpersonal grounds.
We are aware of the Kentucky Court of Appeals' decision in Hartman v. Bd. of Educ. of Jefferson County, Ky. App., 562 S.W.2d 674 (1978) and the board's attempt in that case to have the Court resolve this issue. We strongly believe that the Court in Hartman did not conclude a demotion on such grounds would be unavailable. The Court in fact explained some of the ways the statement of grounds was deficient and we take this explanation to support our conclusion that if the reasons for the reduction in expenditures, etc., are fully given, the requirements of KRS 161.765(2)(b) will have been met.
So as not to be accused of having failed to read all of the Hartman decision, we do recognize that the Court seems to have lapsed into a comparative analysis of "charges for demotion" and charges to terminate a contract (under KRS 161.790). We believe and would argue this comparison was intended only to highlight the guarding of public employes' rights rather than as an expression of limitation on the scope of the grounds upon which a demotion could be based.
Regarding your third question, we have made an effort to answer this question in OAG 78-793, supra.
In response to your fourth question, we do not believe KRS 161.765 gives one protected by its provisions any right to a particular administrative position in the school system. This was also discussed in OAG 78-793.