Request By:
Mr. Don Hensley, Member
Harlan County Board of Education
Wallins, Kentucky 40873
Opinion
Opinion By: Robert F. Stephens Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
You have asked the Office of the Attorney General to consider whether a local board of education can legally give a local school superintendent who is over sixty-five years of age a contract with a duration of longer than one year.
You brought to our attention the provisions of KRS 161.721 that a local superintendent shall be eligible for a continuing contract status when all requirements of KRS 161.720 to 161.810 have been met. You specifically pointed out that KRS 161.720(4) provides for ending of a continuing service contract on reaching the age of sixty-five (65).
It is the opinion of the Office of the Attorney General that a local board of education may give a superintendent who is over sixty-five a contract for more than one year. In support of this conclusion, we refer to a prior opinion of this office, OAG 76-82, copy attached, where we considered the effect of KRS 161.721. In that opinion we stated as follows:
"In light of these statutory provisions we believe the intent of the General Assembly in 1944 was to permit one appointed as a superintendent under KRS 160.350 to become eligible for continuing contract status in a school district when he meets the requirements for that type of status as is required for teachers. This is to say that if an individual appointed as superintendent under KRS 160.350 already has continuing contract status in the district, he need not lose that status upon being appointed superintendent. In this type of situation at the time of appointment to the superintendent's position the individual has met all requirements for continuing contract status applicable to teachers and is immediately eligible to continue with continuing contract status in the district. If, on the other hand, the individual appointed as superintendent does not have continuing contract status in the district at the time of the appointment, when he as superintendent meets the continuing contract status requirements for teachers, he becomes eligible for that status with the district.
While a superintendent is eligible for tenure in a school system, a person holding the position of local school superintendent is not per se covered by the teacher tenure laws. KRS 161.720 - 161.810. In KRS 161.720(1) defining the term "teacher" for purposes of the teacher tenure law, the position of superintendent is explicitly excluded. Furthermore, in a recent opinion, this office concluded that the language in KRS 161.720(4) prescribing the holding of continuing service status only to age sixty-five is inconsistent with the federal Age Discrimination in Employment Act Amendments of 1978 and consequently must bow to the age range of protection up to seventy. A copy of OAG 79-204 is attached for your convenience.
Thus, we are of the opinion that an individual may serve as a superintendent under contract pursuant to KRS 160.350 until the end of the school year in which the age of seventy is reached. See KRS 158.050 and KRS 161.600.