Request By:
Mr. Tilford L. Underwood
Assistant Superintendent
McCracken County Board of Education
Route 6, Bleich Road
Paducah, Kentucky 42001
Opinion
Opinion By: Robert F. Stephens, Attorney General; John F. Zink, Assistant Attorney General
As the Assistant Superintendent of the McCracken County Board of Education you have written to this office concerning several questions dealing with the status of a teacher upon taking disability retirement under the statutes governing the Kentucky Teachers' Retirement System. While you listed several questions, I believe that they can best be answered by examining the effect of the interaction of the statutes regarding the teachers' retirement system and those regarding teacher tenure.
In order to answer your questions, it will be useful to first examine the provisions of KRS 161.770 whereby the local board of education may grant a leave of absence to a teacher. This problem deals with the granting to a teacher an unpaid leave of absence; as such, the pertinent parts of KRS 161.770 are:
Leaves of absence
(1) Upon written request of a teacher or superintendent, a board of education may grant a leave of absence for a period of not more than two (2) consecutive school years for educational or professional purposes, and shall grant such leave where illness, maternity or other disability is the reason for the request. Upon subsequent request, such leave may be renewed by the board. . . .
(2) Without request, a board of education may grant leave of absence and renewals thereof to any teacher or superintendent because of physical or mental disability, but such teacher or superintendent shall have the right to a hearing and appeal on such unrequested leave of absence or its renewal in accordance with the provisions for hearing and appeal in KRS 161.790.
(3) Upon the return to service of a teacher or superintendent at the expiration of a leave of absence, he shall resume the contract status which he held prior to such leave.
Under the above-cited provisions of KRS 161.770, it is clear that a board may grant a leave of absence, either upon its own motion or upon a request by the teacher or superintendent involved, on the basis of a physical or mental disability. What generally occurs at this point is that the board of education, after granting such a leave of absence, will not be in contact with the teacher for the duration of the leave of absence. Subsection (3) specifically states that upon expiration of the leave of absence, the teacher or superintendent in question is to resume the contract status which was held prior to such leave. As such, if a teacher having tenure contract status is granted a leave of absence under KRS 161.770, that teacher resumes that tenure contract status upon return to work.
However, in your letter to this office, you raised the question of the effect of a tenured teacher, after being granted a leave of absence on the basis of physical or mental disability, then applying for and being granted disability retirement by the Kentucky Teachers' Retirement System. KRS 161.661(1) provides that a teacher may retire for disability and be granted a disability allowance if found to be eligible. The key word as it concerns the present matter is "retire. " In the case of a teacher having a tenure contract status and going on leave of absence pursuant to KRS 161.770, the application for disability retirement and acceptance by the retirement system under KRS 161.661 will have a significant result. It is at this time that the provisions of the statutes governing teachers' tenure come into effect. KRS 161.720 (4) PROVIDES:
(4) The term 'continuing service contract' shall mean a contract for the employment of a teacher which shall remain in full force and effect until the teacher resigns or retires, or reaches the age of sixty-five (65), or until it is terminated or suspended as provided in KRS 161.790 and 161.800. (Emphasis added).
Pursuant to the above-cited provision, the teacher seeking benefits under KRS 161.661(1) while on leave of absence (KRS 161.770) has in effect terminated his or her tenure contract status and accompanying rights with the board of education when the teachers' retirement system approves that teacher's application for disability retirement. In short, the teacher has "retired" for the purposes of KRS 161.720 to 161.810.
If the teacher, who has been granted leave of absence and accepted by the teachers' retirement system for disability retirement benefits, then becomes able to return to work, the board of education no longer has to afford to that teacher his or her former tenure rights.