Request By:
Mr. Butch Burnette
State Representative
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
You have asked the Office of the Attorney General for an opinion regarding action taken against a high school coach. As limited background information you informed us that the coach disciplined players in a manner which was objectionable to some of the parents. You stated that although the local superintendent of schools recommended to the local board that the coach be fired, the board, rather than fire him, decided to place a statement of reprimand in his file. You continued in your letter that the coach received a letter from two of the board members indicating that if he would resign, the reprimand would be removed from the record. The questions you seek our opinion on were stated by you as follows:
1. Is there any legal basis for forcing the board's action to be removed from the coach's record?
2. Is the letter requiring resignation as a condition for removal of the reprimand the basis for a legal action against the two board members by the coach?
As we understand the facts, the superintendent recommended termination pursuant to KRS 161.790, copy attached, but the board, by official action, declined to commence removal proceedings, choosing rather to place a statement of reprimand in the coach's file. While there is no statutory language in our school laws providing for written reprimands, we believe under a board of education's broad authority granted to it by KRS 160.290, a written reprimand is permissible. If a written reprimand is going to be made, we encourage local boards of education to consider adopting a policy or regulation similar to that promulgated by the State Department of Personnel relating to merit system employees, 101 KAR 1:120, Section 9. This administrative regulation reads as follows:
"Section 9. Written Reprimands. An appointing authority may give an employee a written reprimand as a preliminary disciplinary measure. A copy of the written reprimand shall be placed in the employee's personnel file in the agency and a copy shall be given to the employee. The employee shall be given the opportunity to reply in writing to the written reprimand and to include this reply in his personnel file with the written reprimand. The employee shall be informed of his right to reply at the time the written reprimand is given. A written reprimand, in and of itself, is not an appealable penalization and is not a basis for appeal."
As indicated by the Department of Personnel's administrative regulation, it is not usually envisioned that legal redress will be sought for a written reprimand. Under the circumstances you outlined, we know of no legal basis for forcing the board's action to be removed from the coach's record, save and except that which might be sought in a court of law. If such a legal action is to be taken and the theory under which it could be brought are matters which must be addressed by legal counsel in the private practice of law.
We commence our discussion of your second question by noting that two members of a five-member board of education have no authority to act for the board. KRS 160.160 and KRS 160.270. The two members' "offer" to remove the written reprimand from the coach's record in consideration of a resignation by the coach is without legal significance. Two members of the board, by other than proper voted upon board action, may not take action binding a local board of education.