Request By:
Mr. Paul J. Vesper
Attorney at Law
28 West Fifth Street
Covington, Kentucky 41011
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 advisory opinion on several questions regarding teachers' contracts. The questions you presented are as follows:
1. Do the provisions of KRS 161.780 apply to terminations by teachers of their contracts while schools are in session?
2. When must the employing board file its complaint with the state superintendent of public instruction to suspend the certificate of a teacher? May the employing board withhold action until the end of the contract year and cause teacher suspension for the succeeding year?
3. May one school board enter into contract with a teacher who has resigned from an employing board while the employing board has refused to accept the resignation of the teacher until a suitable replacement is found?
It is our opinion that the provisions of KRS 161.780 do not apply to terminations by teachers of their contracts while schools are in session during the regular school term.
In support of our response to your first question, we look to the literal language of KRS 161.780, which reads as follows:
"No teacher or superintendent shall be permitted to terminate his contract within thirty (30) days prior to the beginning of his school term without the consent of the board; any such teacher or superintendent shall be permitted to terminate his contract at any other time when schools are not in session by giving two (2) weeks' written notice to the employing board of education. Upon complaint by the employing board to the state superintendent of public instruction and after investigation by him, the certificate of a teacher or superintendent terminating his contract in any other manner than provided in this section may be suspended for not more than one (1) year."
As we read this section, two situations are covered. The first is a termination within thirty days prior to the beginning of the school term. The second, which was added by amendment in 1978, addresses a term "when schools are not in session. " We find nothing in the statute governing terminations by a teacher or superintendent during the school year.
As for your second question, we understand you to be asking the question regarding a situation covered by KRS 161.780. If a teacher or superintendent terminates their employment without seeking and receiving consent by the board of education, a complaint may be made to the Superintendent of Public Instruction, the result of which may be suspension of the teacher's or superintendent's certificate for one year. See 702 KAR 1:040 for the procedure for suspending a certificate after breach of contract. Although neither the statute nor regulation provides any guidelines for when the complaint is to be made by the employing board, we believe a local board of education should present the matter to the Superintendent of Public Instruction within a reasonable period following the occurrence of the wrongful termination. We do not think the board would be acting conscionably to delay its complaint. We think the one-year suspension period was meant to coincide with the school year prior to which the wrongful termination took place.
Your third question presents strictly a law of contracts issue. KRS 161.730 requires each board of education to enter into either a written continuing service or limited contract of employment with its teachers. A superintendent has a written contract pursuant to KRS 160.350. If a teacher or superintendent seeks to terminate their employment with a school system, but the board of education refuses to accept that termination, there is little that can be done short of taking legal action to enforce the contract. A board of education in such a situation may have a case for specific performance, although it is questionable whether the school system will benefit by continuing to require the teacher or superintendent to honor a contract he or she wants out of. The board could, in the alternative, seek damages for the wrongful termination of contract which would be measured by the additional market cost of obtaining a replacement for the unexpired contract term. Obviously, this whole issue would not come up if one school board would honor the contract status of a teacher with another school system. Once the contract status with one school system has been terminated, then, and only then, should another school system attempt to enter into a contract with the teacher.