Request By:
Mr. Martin Calhoun
Mr. Eugene Inmon
Members
Knott County Board of Education
Box 23
Topmost, Kentucky 41862
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As members of the Knott County Board of Education you have asked us to consider the applicable law to a situation of employment of personnel. You gave as background that the superintendent of schools recommended an individual as clerk and also another individual as nurse for employment in the Knott County Schools. You stated your belief that the board had not authorized the employment of an extra clerk or of an extra nurse and had not created any such positions. Nevertheless, the board voted on the two recommendations and in each case there was a tie vote due to kinship. You continued that the superintendent has proceeded to employ the clerk and nurse without the board's approval.
Attached to your letter were photocopies of the board's minutes for its December 11, 1978, meeting when the actions above referred to were considered. We have also received a copy of a letter the Knott County Schools superintendent sent to Dr. James B. Graham, Superintendent of Public Instruction. Additionally, Superintendent Graham has written the Office of the Attorney General for advice concerning this situation.
This office on several previous occasions stated its belief that a local board of education has the power and authority to create and abolish positions of employment in its school system. See, for example, OAG 78-41, copy attached. There is no requirement that such action by a local board be subject to a prior recommendation by its superintendent. However, once a position is created, then it is the statutory responsibility of the superintendent to recommend an individual for the position and for the board to pass on the approval of such recommendation. KRS 160.380. This necessity of the superintendent exercising his recommendation function is so whether the issue is employment or appointment of certificated employees (
Beverly v. Highfield, 307 Ky. 179, 209 S.W.2d 739 (1948) or classified employees (
Reed v. Greene, 243 S.W.2d 892 (1951).
This office is unable to ascertain with any degree of certainty whether the board has created the two positions under consideration. We must say, however, there is a strong indication from the board minutes we have seen that the position did exist and that there were vacancies. Thus, we are down to the need to discuss the application of KRS 160.380 to this situation. KRS 160.380 reads as follows:
"All appointments, promotions and transfers of principals, supervisors, teachers and other public school employes, shall be made only upon the recommendation of the superintendent of schools, subject to the approval of the board. If the board of education cannot agree with the superintendent as to any legally qualified person recommended by the superintendent, the board of education may appeal to the state board of education to review the case and the decision of the state board of education shall be final. All employes of the board shall have such qualifications as are prescribed by law and by the regulations of the state board of education and of the employing board. Supervisors, principals, teachers and other employes may be appointed by the board of education for any school year at any time after February 1 next preceding the beginning of the school year."
The issue that is presented by the situation in your school system is the scope of the authority of the local board of education to reject the recommendation or nomination by the local superintendent for positions in the school system. In that this issue is currently the basis for multiple advisory requests of this office, we have exhaustively researched it and will detail our findings and our conclusions below.
In order to reach a proper perspective concerning this matter we believe it imperative to look at some of the legislative history of KRS 160.380 and its predecessor provisions. Only by doing this can the decisions of the Kentucky Court of Appeals be properly brought to bear on this subject.
We start our review with the Acts of 1912. Under Section 5 of the Acts of 1912, it was the duty of the subdistrict trustee to nominate and recommend to the division's school board teachers for each school in the subdistrict. The trustee had the obligation to convey with the nomination and recommendation "the teacher's credentials and any objections, remonstrances or petitions that may be offered." The board was to elect the recommended teacher who possessed the necessary qualifications and against whom no reasonable objection was offered.
The Kentucky Court of Appeals, in Campbell v. Owens, 150 Ky. 686, 150 S.W. 844, 845 (1912), in construing this language, stated:
"If it had been made to appear that William Owens did not possess the necessary qualifications, or if any objection had been offered to his election based on incapacity, moral unfitness, lack of disciplinary power or proper influence over his pupils, or lack of other qualities essential to good teaching, or any other reasonable objection had been offered, then the trustees would have had a discretion in the matter of his election which the courts would not interfere with in any way, for it is well settled that if an inferior tribunal or a subordinate public body has a discretion, and proceeds to exercise it, such discretion cannot be controlled by mandamus.
The discretion of the members of the educational division, however, is confined to those cases where the teacher nominated by the subdistrict trustee does not possess the necessary qualifications or a reasonable objection is offered to his election.
Where neither of these conditions exist, it is the plain and manifest duty of the members of the division board to elect the teacher nominated by the subdistrict trustee, and for a failure to perform their duty in this respect mandamus will lie." (Citations omitted.)
See also
Maynard v. Maynard, 152 Ky. 623, 153 S.W. 980 (1913). The Court in this case looked beyond what it called the teacher's "technical qualifications" since the teacher had a teacher's certificate.
The statutory law did not substantially change with legislation until 1920 and 1924. See
Scott v. Blackburn, 222 Ky. 514, 1 S.W.2d 977 (1928). Under the 1924 law, the subdistrict trustees were to recommend names of qualified and available persons to be employed as teachers in the subdistrict.
The Court, in Scott v. Blackburn, supra, stated that "where the subdistrict trustee recommends a teacher who possesses the necessary educational and moral qualifications, it is the duty of the county board of education to elect that person and no other." 1 S.W.2d at 978.
Next we turn to the School Code of 1934 (see §§ 4399-9 and 4399-34 of Carroll's Kentucky Statutes, 1936 Edition). These sections, in pertinent part, read as follows:
"§ 4399-9. Nominating teachers. - the subdistrict trustee shall nominate a competent and qualified teacher or teachers for each teaching position in his subdistrict, provided that no subdistrict trustee shall nominate any person related to such subdiscrict trustee as father, mother, brother, sister, husband, wife, son, daughter, nephew, niece, aunt, uncle, son-in-law, daughter-in-law, or first cousin, for any teaching position in his subdistrict and the board of education of the county school district shall elect such person or persons to such teaching position or positions except that the board of education of the county school district may reject the nomination or nominations for cause, provided all rejections shall be stated in writing. In the event of the rejection of the person or persons nominated, the subdistrict trustee or trustees shall nominate another person for the position or positions and the board of education may reject such nomination or nominations for cause, provided that the nomination for teachers shall be made in writing on or before the first day of April next preceding the beginning of the school year, and such nomination shall not be made before the first day of February."
§ 4399-34. Appointment of superintendent. . . . The board of education may, on the nomination of the superintendent of schools, appoint as many assistant superintendents as it deems necessary, whose compensation shall be fixed by the board and who may be removed for cause by the superintendent, with the approval of three members of the board of education. Except as provided under Article V, Section 6-1/2 of this Act (§ 4399-9), all appointments, promotions, transfers and dismissals of principals, supervisors, teachers, and other public school employees shall be made only upon the recommendation of the superintendent of schools, subject to the approval of the board, except as hereinafter provided in independent districts embracing cities of the first and second classes; provided hat supervisors, principals, and teachers shall not be employed for a period longer than one year. In the event the board of education cannot agree with the superintendent as to any certificated person recommended by such superintendent, such board of education may appeal to the State Board of Education to review the case and the decision of the State Board of Education shall be final."
From these two sections we see first in 4399-9, for teachers in subdistrict grade schools, a subdistrict trustee was to nominate "a competent and qualified teacher. " The board of education could reject the nomination "for cause." In the event of such a rejection, the trustee was to nominate another person who could in turn also be rejected by the local board of education "for cause."
For nominations other than those handled under the sections noted above, § 4399-34 provided that concerning "teachers" and "other public school employees" their appointments were to be made by the superintendent "subject to the approval by the board." The section goes on to say:
"In the event the board of education cannot agree with the superintendent as to any certificated person recommended by such superintendent, such board of education may appeal to the State Board of Education to review the case and the decision of the State Board of Education shall be final." (Emphasis ours.)
It is to be noted that the genesis of KRS 160.380 is § 4399-34. § 4399-34 by itself does not indicate the standard by which to weight the power of approval or rejection of a nomination of the superintendent, but simply if the board and superintendent cannot agree about a "certificated person" (teacher/ administrator), an appeal may be taken to the State Board of Education. Nothing else is said about appointments to "other public school employee" positions except that they are subject to the recommendation of the superintendent and approval by the board.
It must be borne in mind that since 1942 (House Bill 206, Chapter 113, Section 13), KRS 160.380 has continued to provide for the superintendent's recommendation and approval by the board of certified and classified employees just like in § 4399-34. However, the "appeals" language became:
"If the board of education cannot agree with the superintendent as to any legally qualified person recommended by the superintendent, the board of education may appeal to the state board of education to review the case and the decision of the state board of education shall be final." (Emphasis ours.)
The word "certificated" was omitted and in its place was inserted the underscored language noted above. Part and parcel of our problem today evolve around what is meant by "legally qualified person."
Looking now at some of the oft-quoted cases regarding appointment of teachers based upon the 1934 school law, we start with
Cottongim v. Stewart, 277 Ky. 706, 127 S.W.2d 149 (1939). The Kentucky Court of Appeals stated that a county superintendent is given authority to nominate teachers and if it is done in accordance with the terms of the statute (citing § 4399-9), the board of education must consent to and approve those appointments unless "substantial cause" in each particular case be shown. 127 S.W.2d at 149. In Cottongim, supra, the board had straight out rejected the nomination of the superintendent. No "substantial cause" was given by the board. The Court concluded that:
"In the absence of a showing of cause to the contrary, each plaintiff (teacher) had a vested right to have her nomination recognized by the Board of Education. . . ." 127 S.W.2d at 152.
In reaching this decision in Cottongim, the Court cited to the case of
Stith v. Powell, 251 Ky. 155, 64 S.W.2d 491 (1933) among other pre-1934 school code cases. The question before the Court of Appeals in Stith was "whether a county board of educat on may with or without reason refuse to elect principals, assistant principals, and teachers nominated by the county superintendent . . . and, if it may do so only for cause, then for what cause may it so refuse." 64 S.W.2d at 492. The Court was looking at the 1924 school law. The Court stated:
"It is now settled that, while the county board has a discretion to determine whether a nominee possesses the necessary educational and moral qualifications for the position to which he has been nominated, (citation omitted); yet if the nominee possesses such qualifications, it is then the duty of the county board of education to elect him. . . ." 64 S.W.2d at 493.
The Court concluded that the discretion of the board was confined to the determination of moral and educational fitness. Id. It thus can be seen the Cottongim court equated "substantial cause" to "moral and educational fitness."
The next case we have considered is
Beckham v. Kimbell, 282 Ky. 648, 139 S.W.2d 747 (1940). In this case the Court of Appeals was considering § 4399-34. The Court said that:
"The board must present some legal cause for not approving the Superintendent's nominations. " 139 S.W.2d at 748. (Emphasis ours.)
In
Amburgey v. Draughn, 288 Ky. 128, 155 S.W.2d 740 (1941), the Court of Appeals again was considering § 4399-34. In this case the superintendent had recommended certified and classified employees. The recommendations were not withdrawn but the board had refused to approve the recommendations. The Court stated that:
"It was the duty of the board to consent to and approve the appointments to the positions to which teachers and employees were recommended, unless substantial cause in each particular case be shown."
The Court cited
Cottongim v. Stewart, supra. 155 S.W.2d 742. The Court, in Amburgey, further stated that:
"One who is legally qualified for the position, and who has been duly nominated by the proper officer and whose name has never been withdrawn, acquires a vested right to teach, or perform the duties of his employment, and to receive the emoluments of the employment, as certainly as if a contract had been executed with the approval of the board." Id.
In
Duff v. Chaney, 291 Ky. 308, 164 S.W.2d 483 (1942), the Court of Appeals, considering § 4399-34, stated that:
"In the absence of a showing of cause to the contrary, the teacher recommended has a vested right to have her nomination recognized by the board. . . ." 164 S.W.2d 485.
Lastly, we look at
Smith v. Beverly, Ky., 236 S.W.2d 914 (1951). The Court of Appeals in this case was no longer looking at § 4399-34 but KRS 160.380 as it had been amended in 1942, which is basically as it is now as we noted above. However, citing the § 4399-34 cases discussed above, the Court stated:
"We have held in our interpretation of the last mentioned section (KRS 160.380) that it is the mandatory duty of a board of education to elect a recommendee of its superintendent, if such recommendee possesses the necessary moral and educational qualifications; and in passing on any recommendations made by its superintendent, no board has the right to arbitrarily reject a recommendee, but it is limited in its right of rejection, in the exercise of sound discretion, to determine whether the recommendee is morally fit or educationally qualified for the position to which he is recommended. " (Citations omitted.) 236 S.W.2d at 917.
If "legally qualified person" means one who is "morally and educationally qualified," we must still ascertain what are "educational qualifications, " assuming for a second that the rub does not occur for the most part on the moral qualifications of an indivudual recommended by a local superintendent. Reflecting back, the § 4399-34 cases equated "cause" (for rejecting a nomination) to "moral and educational fitness." The word "cause" has been considered by our Kentucky Court of Appeals to mean "good cause" or "legal cause. " For example, in
Smith v. Board of Education of Ludlow, Ky., 264 Ky. 150, 94 S.W.2d 321 (1936), the Court stated the rule that:
"The word 'cause' in a statute authorizing the removal of officers for cause means legal cause and not any cause which the board authorized to make such removal may deem sufficient. It is implied that they cannot be removed at the mere will of those vested with power of removal or without any cause. It must be a cause relating to and affecting the administration of the office and must be restricted to something of a substantial nature directly affecting the rights and interest of the public."
While this case was discussing the "for cause" language relating to the removal of a local superintendent under what is now KRS 160.350, the predecessor statute to this section was also § 4399-34.
Some additional insight may be gotten concerning "cause" by looking at the "appeals" language as viewed by the courts. In
Beckham v. Kimbell, supra, the Court considered the appeals language of § 4399-34 quoted above. The Court of Appeals stated:
"We construe this to afford a means of breaking a deadlock or stalemate which has been reached by a good faith conflict between the County Superintendent and the Board of Education arising when each has exercised his or their respective prerogatives in accordance with some provision of the law. Thus, if the Board should seasonably decline to approve a nomination of a teacher for legal cause, and neither they nor the Superintendent will recede from their respective positions, this statute effords a wise and sufficient process for arbitrating or settling the issue." 139 S.W.2d at 749.
The Court of Appeals, looking at KRS 160.380, in
Board of Education of London Ind. Sch. Dist. v. Miller, Ky., 299 S.W.2d 626 (1957), stated:
"KRS 160.380 provides that in the event of disagreement between a superintendent and a board over a person recommended by the superintendent, the board may appeal to the state board of education for a review of the case. The statute was designed to provide an orderly and speedy process for disposing of good faith school disputes. A local board may not postpone approval of a superintendent's recommendations without seasonably showing legal cause for disapproval.
Beckham v. Kimbell, 282 Ky. 648, 139 S.W.2d 747."
Boiling all of the foregoing down to summary, we are of the opinion that very clearly a local board of education may not reject a superintendent's recommendation regarding personnel employment or appointment for just any reason it chooses. The reason(s) for such rejection must be based in good faith on legal causes in order for the rejection to have legal justification. Matters of moral and educational qualifications constitute legal cause, but we do not believe the case law would limit the term "educational qualifications" to mere educational certification. The Court, in Beckham, supra, spoke of the teachers who had been recommended as being "of good moral character and possess(ing) the proper educational qualifications and certificates." 139 S.W.2d at 748. (Emphasis ours.)
Moreover, in County Board of Education v. Weatherford, 241 Ky. 66, 43 S.W.2d 340 (1931), the Court of Appeals, looking at pre-1934 school law, considered the issue of whether a subdistrict trustee could withdraw a recommendation of a teacher. After recognizing that teachers are to possess necessary educational and moral qualifications, the Court went on to say:
"Experience has demonstrated that mere knowledge and good character, important as they may be, do not always make a successful teacher. In addition to tact, vitality, and the capacity to maintain discipline, a real teacher should not only have the power to instruct and inspire his pupils with a love of learning and of work, but should possess those indefinable qualities of leadership that command confidence and respect." 43 S.W.2d at 341.
Also, recall again the Court's discussion of the reasons for rejection of a teacher discussed in
Campbell v. Owens, supra, as to other qualities essential to good teaching. Additionally, it must be remembered that a board of education may establish qualifications, educational and otherwise, for its employees, both certified and classified, and for certified employees (teachers/ administrators), in the sense of educational qualifications, this means that a board may require more education than is necessary for mere certification. See KRS 160.290;
Daviess County Board of Education v. Vanover, 219 Ky. 565, 293 S.W. 1063 (1927), and OAG 78-41, copy attached. Thus, based upon the language in the case law reviewed above, we conclude that a board of education may reject a recommendation or nomination by the local superintendent, whether it is of a certified or classified employee, only for a legal cause of substantial nature relating to and affecting the carrying out of the position for which the individual was recommended.
In the present situation we have not been informed of the legal causes upon which you voted to reject the superintendent's recommendation. It is our suggestion that the recommendations concerning these two positions be re-evaluated by the board of education. The superintendent may either withdraw his former recommendation and recommend someone else, or, if he does not, and recommends the same individuals again, if the vote is again two to two with one member not being able to vote because of kinship, the motion to employ will have failed but the two negative voters should state the "legal causes" upon which their votes are based in good faith. A full discussion of the legal causes for rejection may be had in a closed session of the board. See KRS 61.810(6). While the individuals who the superintendent has recommended have vested rights in the positions for which they have been recommended, nothing in the case law supports the right of the superintendent going ahead and placing the individuals who have been rejected into the positions. If the vote were to continue to be two to two, for sure the board has failed to "agree" with the superintendent. KRS 160.380. The options available are for the board to take the matter to the State Board for Elementary and Secondary Education for review or the individuals recommended whose names have not been withdrawn may go into circuit court against the board for specific performance of the implied contract. See
Amburgey v. Draughn, supra. If the board does not take the matter to the State Board for Elementary and Secondary Education and the parties resort to court for relief, the provision for appeal to the State Board is then not applicable. See
Beckham v. Kimbell, supra. Thus, we believe that in situations where the board has in good faith, based upon legal causes, rejected the recommendations of a superintendent, it behooves the local board to take the matter to the State Board for review. The State Board can consider whether the legal causes given constitute legal justification for the rejection of the recommendation. To fail to take the matter to the State Board and risk being sued for specific performance and under certain circumstances the awarding of damages, tarnishes the belief that a good faith conflict based upon legal causes exists between the board and superintendent concerning a recommendation.
We trust the above opinion will be of assistance to you and the board and local superintendent of the Knott County Schools in the consideration of the personnel problems discussed in your letter to this office.