Request By:
The Honorable Edward L. Fossett
Attorney
Department of Education
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; Robert L. Chenoweth, Acting Deputy Attorney General
As the Attorney for the Commonwealth of Kentucky Department of Education, you have asked the Office of the Attorney General for advice relative to the construction of KRS 156.132 and KRS 161.120. Although we are quite aware your inquiry has arisen from a matter of controversy in the Jefferson County Schools concerning the board of education of that district and its superintendent, we will oblige your request without specific reference to these parties. We have not nor do we intend to inspect and review the various materials which have developed regarding the Jefferson County Schools situation prior to the writing of this opinion. Our aim in the rendering of this opinion will be simply to set forth our analysis of the provisions of KRS 156.132 and KRS 161.120. Actual application of the provisions of these laws will rest with the State Superintendent of Public Instruction, hereafter State Superintendent, or the State Board for Elementary and Secondary Education, hereafter State Board.
KRS 156.132 is not a model of clarity. Virtual extrapolation is necessary in sorting out what this statute requires. For ready reference as we discuss this law, we copy it here in full:
"(1) The superintendent of public instruction or the state board for elementary and secondary education shall recommend, by written charges to the proper school authorities having immediate jurisdiction, the removal of any superintendent of schools, principal, teacher or other public school officer who in his or their opinion is guilty of immorality, misconduct in office, incompetency or wilful neglect of duty.
(2) The superintendent of public instruction shall recommend by written charges the suspension by the state board for elementary and secondary education of any district board member or superintendent of schools who in his opinion is guilty of immorality, misconduct in office, incompetency or wilful neglect of duty. The state board for elementary and secondary education shall, after a summary hearing as provided by regulations, suspend any district board of education member or superintendent of schools, who in the opinion of the majority of the state board for elementary and secondary education is guilty of gross immorality, misconduct in office, incompetence or wilful neglect of duty. Such action by the state board for elementary and secondary education may be taken upon a recommendation of the superintendent of public instruction, or such action may be taken by a majority vote of the state board for elementary and secondary education without recommendation from the superintendent of public instruction.
(3) The state board for elementary and secondary education may suspend a district superintendent of schools under subsection (2) of this section only if after thirty (30) days of receipt of the written charges specified in subsection (1) of this section, the district board of education has refused to act, has acted in bad faith, arbitrarily or capriciously, or if a recommendation to the district board would have been futile."
The first problem we must face is the sequence of consideration of the subsections in KRS 156.132. That is subsection (2) does not necessarily build upon subsection (1). The subsections do fit together, but like pieces of a puzzle, there is only one way in which they match up.
To get a proper perspective of KRS 156.132, it is necessary to set the stage for this section even to be considered. Thus, we begin by establishing that someone, anyone, has brought to the attention of the State Superintendent and/or the State Board allegations of wrongdoing of one sort or another by a local school officer, including a local superintendent, or by a local board member. This information could come in a letter of complaint or a petition or most any other form, including orally. It is probably more likely than not that the letter or petition or whatever, would be sent to both the State Superintendent and the State Board. Therefore, we must look at, respectively, the responsibilities and options for the State Superintendent and the State Board.
Looking first at the State Superintendent's responsibilities and options, when allegations have been brought to his attention regarding wrongdoing by a local school officer, it will be most likely the rule rather than the exception that additional information will be needed. The State Superintendent has an obligation to be concerned about acts of "immorality, misconduct in office, incompetency or wilful neglect of duty. " KRS 156.132(1) Another section of school law that may be of help to the State Superintendent under such circumstances is KRS 156.210 which reads in full as follows:
"(1) The superintendent of public instruction shall have access to the papers, books and records of all teachers, trustees, superintendents or other public school officials.
(2) He may administer oaths, and may examine witnesses under oath in any part of the state in any matter pertaining to the public schools, and may cause the testimony to be reduced to writing. He may issue process to compel attendance of witnesses before him and compel witnesses to testify in any investigation he is authorized to make.
(3) When he or his assistants find any mismanagement, misconduct, violation of law or wrongful or improper use of any district or state school fund, or neglect in the performance of duty on the part of any official, he shall report the same, and any other violation of the school laws discovered by him, to the state board for elementary and secondary education, who shall, through the superintendent of public instruction or one (1) of his assistants, call in the county attorney in the county or district where the violation occurs, and the attorney so called in shall assist in indictment, prosecution and conviction of the accused. If prosecution is not warrantable, the state board for elementary and secondary education may rectify and regulate all such matters."
As can be seen from the language in this statute, the State Superintendent could initiate an investigation into the allegations that have been presented to him. If the investigation disclosed acts of "mismanagement, misconduct, violation of law or wrongful or improper use of any district or state school fund, or neglect in the performance of duty on the part of any official," the State Superintendent must report this information to the State Board. KRS 156.210(3). Also, depending upon the nature of the facts discovered from the investigation, if the State Superintendent has formed an opinion from such evidence that the local school officer "is guilty of immorality, misconduct in office, incompetency or wilful neglect of duties," then the State Superintendent may prepare "written charges" regarding the acts he believes have been committed by the local officer. KRS 156.132(1). These written charges are to serve as a recommendation "to the proper school authorities having immediate jurisdiction," for the removal of the local school officer in question. Id. We are talking in KRS 156.132(1) about local school officers such as a teacher, principal, other administrators and a local superintendent. This being the case, the local authority having proper jurisdiction is the local district board of education.
Before going on, we believe it is important to look closely at the provision of KRS 156.132(1) that the State Superintendent is of the "opinion [the school officer] is guilty" of one of the "categories of causes" set out in the statutes. We do not believe this calls for a conclusive opinion of guilt, but only a satisfaction of the mind that the charges may be substantiated by evidence which would justify and warrant removal consideration and action by the local board of education.
If the State Superintendent has recommended to the local board of education the removal of the local superintendent he also should, as outlined above, through written charges and after formation of the same kind of opinion of guilt as to acts of "immorality, misconduct in office, incompetency or wilful neglect of duty" recommend to the State Board that they take steps to suspend the local school superintendent. KRS 156.132(2).
Thus, to this point as regards KRS 156.132, note that the State Superintendent has authority to, based upon and through the same manner of process, send written charges recommending the removal of the school officer, including a local superintendent, to the local board of education in which the school officer is employed, and to send written charges to the State Board recommending that body take steps to suspend the local school officer if that officer is the local superintendent. Please note that KRS 156.132(2) is limited to consideration of a local board member or a local superintendent, but is not in any way applicable to a teacher or a principal as is the situation in KRS 156.132(1). As we see it, this is as far as the law takes the involvement of the State Superintendent in such a matter.
We turn now to the State Board and back up in our consideration to the time at which the State Board has received the same letter, petition, etc., alleging wrongdoing by a local school officer. We would anticipate that it would be known or discovered by the State Board whether the State Superintendent has also received this information. If the State Superintendent has received the information or even if not, it would seem to follow that an investigation is still proper as discussed above. The State Board could ask the State Superintendent to have such an investigation conducted. Even if for some reason the State Superintendent declined the State Board's request, the State Board could initiate its own investigation of the allegations which have been presented to it.
Before going on with what the State Board may do, we digress briefly to point out that it is not inconceivable that the letter of complaint, petition, etc., may be adequately supported with accompanying documentation that would make an investigation as discussed above unnecessary. If the information presented is such as to serve an adequate basis to formulate an opinion of guilt in the nature delineated above without the investigation, we see no reason why one would need be held.
Gleaning from the statutes what the State Board may do next is somewhat of a hassle, depending upon what has occurred or taken place by the State Superintendent. The State Superintendent may already have (1) prepared written charges to the local board recommending removal of the local officer, including the local superintendent; (2) prepared written charges to the State Board recommending suspension if in issue is the local superintendent; or (3) concluded there was not evidence to substantiate and warrant suspension or removal. The easy one of these three possibilities to discuss is the last one. The provisions of KRS 156.132 make very clear that the actions of the State Board are not dependent upon those of the State Superintendent as was once the case and the law. See Hogan v. Kentucky State Board of Education, Ky., 329 S.W.2d 563 (1959). Clearly, under KRS 156.132(1), the State Board may also, independently of actions by the State Superintendent, "recommend, by written charges to the proper school authorities having immediate jurisdiction, the removal of any superintendent of schools, principal, teacher or other public school officer who in . . . their opinion is guilty of immorality, misconduct in office, incompetency or wilful neglect of duty. " This applies to any school officer. The manner in which this opinion by the State Board may be reached is the same as discussed above for the State Superintendent. We believe, as we will indicate below, that such an opinion would have to be formulated by four of the seven voting members of the State Board. See KRS 156.030.
If the school officer in question is a local superintendent of schools and, if the State Superintendent has already prepared written charges recommending removal of the local superintendent by the local board of education, an act that must be done, save for limited circumstances, will already have been accomplished. That is, the State Board may take action to suspend a local superintendent of schools based upon the written charges prepared by the State Superintendent only after giving the local board of education an opportunity to act. KRS 156.132(3) provides that before the State Board may suspend a local school superintendent under the procedures set out in KRS 156.132(2), the district board of education has thirty (30) days from the receipt of the written charges specified in KRS 156.132(1) to take some action. Note that these "written charges" are the ones prepared by the State Superintendent and passed on to the State Board or the ones prepared by the State Board itself if the State Superintendent has declined to act or make any recommendations. It is also possible that the written charges sent back to the local board of education could be a combination of the written charges prepared by the State Superintendent and those developed by the State Board. We do believe that before the State Board may send back to the local board of education the written charges, a majority of the State Board must be of the opinion that the local superintendent is guilty of "immorality, misconduct in office, incompetency or wilful neglect of duty. " Once the district board receives the written charges, the district board may commence consideration to remove its superintendent under KRS 160.350; refuse to act; or act in bad faith, arbitrarily or capriciously. If the local board does anything other than take action to remove the local superintendent, after thirty (30) days from receipt of the charges by the local board, the State Board would regain "jurisdiction" so to speak and could then go forward to suspend the local superintendent. It must be noted that this whole "sending back to the local board process" may be aborted "if a recommendation to the district would have been futile." KRS 156.132(3). For the State Board to make such a decision, is in our way of thinking, a judgment call based upon the facts and circumstances extant.
In order to further explore the other provisions of KRS 156.132(2), let us assume that we have gotten to the point where either the State Board has made a decision that it would be futile to send the matter regarding a local superintendent back to the local board or the thirty (30) days have passed without satisfactory action having been taken by the local board. At this point, the State Board may take action to suspend the local superintendent. KRS 156.132(2) states: "The state board for elementary and secondary education shall, after a summary hearing as provided by regulations, suspend any district board of education member or superintendent of schools, who in the opinion of the majority of the state board for elementary and secondary education is guilty of gross immorality, misconduct in office, incompetency or wilful neglect of duty. " The State Board at this juncture is to hold "a summary hearing as provided by regulations. " The purpose of this summary hearing, as we see it, is for the State Board to consider the evidence and take a vote to see if a majority of the State Board share the opinion that the local superintendent is guilty of "gross immorality, misconduct in office, incompetency or wilful neglect of duty. " Our research reveals that there exists no State Board regulations relating to the summary hearing process called for in KRS 156.132(2). Although we strongly believe this should be corrected as soon as reasonably possible, we do not see the absence of such regulations as an insurmountable defect. The reason we say this is that a majority of the State Board, prior to this summary hearing, is going to have already voted an "opinion of guilt" as we have discussed this phrase, to take other action, that is, sending it back to the local board. The difference is simply that at the summary hearing, the vote of the majority of the State Board with this opinion will be needed to formally suspend the local superintendent. The regulations called for to exist here would be for the benefit of the State Board members, not the local superintendent. We believe it also bears mentioning that the times of discussion regarding these matters may be held in closed session by the State Board. See KRS 61.810(6).
One additional point in passing we believe some mention needs to be made of is the change made in the "categories of causes" found in KRS 156.132(2). In subsection (1) of KRS 156.132 and in subsection (2) as to the written charges for suspension which may come from the State Superintendent, the "categories of causes" are "immorality, misconduct in office, incompetency or wilful neglect of duty. " In subsection (2) when the summary hearing consideration for suspension by the State Board is underway, the "categories of causes" are stated to be " gross immorality, misconduct in office, incompetency or wilful neglect of duty. " (Emphasis Supplied) We know of no explanation but oversight of the General Assembly as to why the term changes from that of "immorality" to "gross immorality. "
KRS 156.132(2) seems to be inadequate when one wonders what occurs if a majority of the State Board votes to suspend a local superintendent of schools. The truth of the matter is that this subsection of the law leaves off here and the procedure to be hence followed is set out in KRS 156.134. Again for purposes of discussion, we quote in its entirety KRS 156.134:
"(1) Any officer suspended by the state board for elementary and secondary education under subsection (2) of KRS 156.132 shall be furnished with a written statement specifying in detail the reasons for suspension and naming a date and place at which the officer may appear before the state board for elementary and secondary education to answer the charges. The date shall be not less than twenty (20) nor more than thirty (30) days after the service of such charges upon the officer. Within ten (10) days after receipt of the charges, the officer may notify the state board for elementary and secondary education of his intention to appear and answer such charges. If the officer fails to notify the board of his intention to appear and answer such charges, the state board for elementary and secondary education may remove the officer by a majority vote and such dismissal shall be final.
(2) Upon receipt of the officer's notice of intention to appear and answer such charges the state board for elementary and secondary education shall issue such subpoenas as shall be necessary for the determination of the issues involved. The issues shall be heard at the time and place set and the hearing shall be public or private at the discretion of the state board for elementary and secondary education. Both parties may be represented by counsel and may require the presence of witnesses upon subpoena. Each witness shall be required to take oath before an officer of the board. The state board for elementary and secondary education shall provide for a stenographic report of the proceedings and furnish the officer with a copy.
(3) Upon completion of both sides of the case, but within ninety (90) days from the date the officer was suspended, the state board for elementary and secondary education may by a majority vote remove the officer. If within ninety (90) days from the date of suspension, the state board has not removed the officer, or has dismissed the charges, the suspended officer shall be reinstated and shall be paid his full salary for the period of such suspension.
(4) The officer shall have a right to appeal both as to law and to fact to the circuit court for trial without a jury. If said appeal is not made within thirty (30) days after removal, then the decision of the state board for elementary and secondary education shall be final. Said appeal shall be an original action in said court and shall be commenced by the filing of a petition against the state board for elementary and secondary education, in which petition the facts shall be alleged upon which the officer relies for a reversal or modification of the order of removal. Upon service or waiver of summons in said appeal, the state board for elementary and secondary education shall forthwith transmit to the clerk of said court for filing a transcript of the original notice of charges and a transcript of all evidence adduced at the hearing, whereupon the cause shall be at issue without further pleading and shall be advanced and heard without delay. The court shall examine the transcript and record of the hearing before the state board for elementary and secondary education and shall hold such additional hearings as it may deem advisable, at which it may consider other evidence in addition to such transcript and record. Upon final hearing, the court shall grant or deny the relief prayed for in the petition. Either the officer or the state board for elementary and secondary education may appeal from the action of the court to the Court of Appeals. If the decision of the court is against removal, the officer shall be paid his full salary from the date of suspension. Such payment shall be made from funds appropriated to the state department of education."
The procedure set out in this section nearly parallels that in KRS 161.790 when termination of a teacher's contract is in issue. It is clear from KRS 156.134(1) that after the State Board has voted to suspend a local superintendent, the local superintendent is to be furnished a written statement specifying in detail the reason for the suspension. This written statement is also to provide a date and place at which the local superintendent may appear before the State Board to answer "the charges." We believe "the charges" in this subsection is referring to the "written charges" which plays an important part in the preliminary considerations set out in KRS 156.132. The date to be set by the State Board for the appearance by the local superintendent is to be "not less than twenty (20) nor more than thirty (30) days after the service of such charges upon the officer." (Emphasis Supplied) This means that the date for the appearance is to be not less than twenty (20) nor more than thirty (30) days after the day the written statement is mailed to the local superintendent. Then within ten (10) days after receipt by the local superintendent of the charges (written statement specifying in detail the reasons for suspension) the local superintendent must have notified the State Board that he intends to appear before the State Board and answer the charges. If the local superintendent does not timely so notify the State Board, that body may proceed to remove the local superintendent by a majority vote (four votes).
KRS 156.134(2) spells out the characteristics of the hearing to be held if the local superintendent has timely notified the State Board he desires to appear and answer the charges. The local superintendent is entitled to have such subpoenas issued as he believes necessary. The State Board may issue subpoenas to compel witnesses to testify. The hearing is to be held at the time and place set in the written statement specifying reasons for the suspension. This hearing is to be public or private at the discretion of the State Board. Here, it should be pointed out, exists a sharp contrast not only with the similar provision in KRS 161.790(4) where the discretion is that of the teacher, but also with the permissible exception available under the open meetings law, KRS 61.810(6). We believe it is advisable for the State Board to exercise restraint in this matter and bow to the wishes of the local superintendent of schools as to whether the hearing is to be public or private.
KRS 156.134(2) further provides the right of representation by counsel and that witnesses are to be sworn. Although the statute does not so set out, we believe, consistent with an adversary due process hearing as otherwise described, the local superintendent is entitled to confront those who have made accusations against him that are a basis for the written charges and to cross examine those accusers. The hearing proceedings are to be stenographically reported and a copy of the stenographic report is to be provided to the local superintendent.
KRS 156.134(3) discusses the procedure to be followed after completion of the hearing by both sides. Basically, the statute calls for the State Board to act within ninety (90) days from the date the local superintendent was suspended. Within that period of time, the State Board can either by majority vote of the voting membership remove the local superintendent or dismiss the charges. If the State Board has voted to remove the local superintendent, we encourage the State Board to prepare written findings specifying which charge or charges it found to be a basis for the removal. Cf. Bell v. Bd. of Ed. of Harlan, Etc., Ky. App., 557 S.W.2d 433 (1977). If the State Board has voted to dismiss the charges or failed to act within ninety (90) days from the date the local superintendent was suspended, the local superintendent, who during this interim has been suspended, is to be reinstated with full salary for the period of the suspension. Cf. KRS 161.790(5)
KRS 156.134(4) sets out the appeal procedure if the local superintendent has been removed by the State Board. These provisions parallel KRS 161.790(4) and, the importance of such parallelism as noted above is that there has been considerable appellate review of KRS 161.790. See e.g., Carter v. Craig, Ky. App., 574 S.W.2d 352 (1978); Kelly v. Bd. of Ed., Ky. App., 566 S.W.2d 165 (1978); Blackburn v. Bd. of Ed. of Breckinridge County, Ky. App., 564 S.W.2d 35 (1978); Mavis v. Bd. of Ed. of the Owensboro Independent School District, Ky. App., 563 S.W.2d 738 (1977); and Bell v. Bd. of Ed. of Harlan, Etc., supra.
One more statute must be considered and that is KRS 156.136 which reads in full as follows:
"(1) The state board for elementary and secondary education, upon suspension of any officer or district board of education member under subsections (2) and (3) of KRS 156.132, shall name a person to fill the vacancy caused by such suspension. Persons appointed by the state board for elementary and secondary education to fill vacancies under KRS 156.132 to 156.146 shall hold office only during the time an officer is suspended, not to exceed ninety (90) days from the date of suspension. At the expiration of such period, vacancies shall be filled in the manner provided by law for the office. Persons appointed by the state board for elementary and secondary education to fill vacancies caused by suspension shall be paid from funds of the district board of education. Any person employed to fill the position of a superintendent who has been removed by the state board for elementary and secondary education under KRS 156.132 shall be employed by the district board of education for a period not to exceed one (1) year if the superintendent has appealed to the courts and if the courts have not taken final action."
This statute is quite important because it recognizes that the work and activities of a local school system must go on irrespective of the matter pending before the State Board regarding entitlement of a local school superintendent or local board member to continue in office. When a local superintendent has been suspended as provided for in KRS 156.132(2) as discussed above, the State Board is directed to name a person to fill the vacancy created by the suspension. A person so appointed to fill a vacancy during a suspension may hold office only during the time the local superintendent or district board member is suspended and not longer than ninety (90) days from the date of the suspension. After this period, vacancies are to be filled as otherwise provided by law. See KRS 160.190 (school board member) and KRS 160.350 (local superintendent) . In the situation where a superintendent has been removed by the State Board under KRS 156.132, the local board may employ a person as superinintendent for a period not to exceed one (1) year if the removed superintendent has appealed his removal to the courts and if the courts have not taken final action. As a practical matter, we see a potential problem with this provision in that it is highly unlikely that "final action" by the appellate courts may be had within a period of one (1) year. The statute gives no guidance as to what should occur in such a situation. However, we do not believe it is necessary to get into this thorny problem at this time.
You also asked about an entirely different matter and process, that of revocation of certificates under KRS 161.120. This statute reads in full as follows:
"(1) Any certificate issued under KRS 161.010 to 161.110, or any certificate or license issued under any previous law to superintendents, principals, teachers, supervisors, directors of pupil personnel or other administrative, supervisory or instructional employes may be revoked by the state board for elementary and secondary education, on the written recommendation of the superintendent of public instruction, for immorality, misconduct in office, incompetency or willful neglect of duty, or upon the determination that a certificate applicant presented or declared false information toward obtaining the issuance or renewal of any type of teacher certification. Before the certificate is revoked the defendant shall be given a copy of the charges against him and an opportunity, upon not less than ten (10) days' notice, to be heard in person or by counsel."
Very importantly in the consideration of this law is that the State Board may act only upon a recommendation of the State Superintendent. The "categories of causes" are the same as those considered in KRS 156.132 for suspension and removal. We do not believe the State Superintendent must recommend revocation of certificate even though he has recommended suspension or removal under KRS 156.132 for the same acts. This matter is one of discretion resting in the State Superintendent. Cf. Hogan v. Kentucky State Bd., of Ed., supra. If the State Superintendent does recommend to the State Board revocation of a certificate, the school officer, administrator, or teacher must be given a copy of the charges and an opportunity to be heard in person or by counsel upon not less than ten (10) days notice. Although the statute seems to provide for an abbreviated consideration by the State Board of revocation of certificate, we believe a fundamentally fair adversary due process hearing would, at the minimum, be required. Additionally, while the statute does not so spell out, we believe such a decision to revoke a certificate must be by a majority vote of the membership of the State Board (four votes).
SUMMARY
Considerations for the suspension, removal and/or revocation of certificate of a local school superintendent by the State Superintendent and the State Board are very serious ones. We believe the process to be followed is primarily adequately provided for in the school laws. Nevertheless, like a puzzle, some of the pieces to the process seem to be hidden from all but the most scrutinizing searcher. We trust we have helped to show what the puzzle is to look like when finished. We encourage the State Superintendent and State Board to work together closely on any consideration of this nature.
If we may be of further assistance, please contact us.