Request By:
Mr. R. D. Whitesell, Chairman
Fulton City Board of Education
Fulton, Kentucky 42041
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Deputy Attorney General
You have asked the Office of the Attorney General to consider several questions regarding the employment of teachers. Your questions were listed by you as follows:
1. Can the Superintendent refuse to make a recommendation to the Board relative to the contract renewal or firing of a teacher?
2. Can the Board legally order the Superintendent to make a recommendation on the contract renewal or firing of a teacher?
3. Does the lack of a recommendation from the Superintendent constitute an implied consent to:
a. Rehire the teacher?
b. Fire the teacher?
4. What effect does a split vote (2-2) by the Board have in a rehire or fire situation?
5. If a Board member abstains from voting in a rehire or fire situation, does the abstension imply a yea or nay connotation to the motion before the Board?
6. Should the Superintendent recommend that a person be rehired as a coach and teacher, can the Board legally rehire that person as a teacher only?
In order to put your questions in the proper legal perspective, we believe a review of several sections of Kentucky's teacher tenure laws is in order. There are only two types of teacher contracts, limited and continuing service (tenure) . KRS 161.720(3) defines a "limited contract" as being "a contract for employment of a teacher for a term of one (1) year only or for that portion of the school year that remains at the time of employment." The definition for "continuing service contract" is defined as "a contract for the employment of a teacher which shall remain in full force and effect until the teacher resigns or retires, or reaches the age of sixty-five (65), or until it is terminated or suspended as provided in KRS 161.790 and 161.800." * KRS 161.730 provides that "each board of education shall enter into written contracts, either limited or continuing, for the employment of all teachers. " Thus, every teacher is required to have a written contract of one type or another.
KRS 161.740 sets forth the criteria to be met before one is eligible for continuing service contract status. KRS 161.750 provides for the renewal of limited contracts which will be more closely looked at below. Lastly, KRS 160.380 states in pertinent part that "all appointments, promotions and transfers 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." See OAG 79-78, copy attached.
In your letter you referred to "not renewing the contract of a tenured teacher. " Once a teacher is given a continuing service contract, that contract status (tenure) is retained by operation of the law without further action by the board being necessary until the teacher resigns, retires, reaches age seventy (70), or until the contract is terminated for cause pursuant to KRS 161.790 or suspended pursuant to KRS 161.800. See KRS 161.720(4), supra, and also OAG 80-150, copy attached, for our recent interpretation of KRS 161.800. Thus, the law does not authorize a renewal consideration of a tenured teacher.
We believe your concerns center around the issue of renewal or not of a limited contract teacher. As referenced above, the relevant statutory provisions to this issue are KRS 160.380 and KRS 161.750. We set out the provisions of this latter statute in full for easy reference in reviewing your questions. KRS 161.750 reads as follows:
"(1) Any teacher employed under a limited contract shall at the expiration of such limited contract be deemed reemployed under the provisions of KRS 161.720 to 161.810 for the succeeding school year at the same salary plus any increment or decrease as provided by the salary schedule, unless the superintendent of schools has recommended to the board of education that the contract of the teacher not be renewed and unless the board has voted to approve said recommendation.
(2) If the board of education approves the superintendent's recommendation, as provided in subsection (1) of this section, the board must present written notice to the teacher that the contract will not be renewed no later than April 30 of the school year during which the contract is in effect. Upon receipt of a request by the teacher, the board shall provide a written statement containing the specific, detailed and complete statement of grounds upon which the nonrenewal of contract is based.
(3) Upon failure of the employing board of education to act favorably on the recommendation of the superintendent not to renew a contract as required by subsection (1) of this section, to give written notice of said nonrenewal as required by subsection (2) of this section or to provide the written statement of grounds required by subsection (2) of this section the teacher shall receive a a contract of employment for the next school year; and, if the teacher has served the number of years as required by KRS 161.740(1)(b) or (c), said contract of employment shall be a continuing contract. Such teacher shall be presumed to have accepted such employment, unless he shall notify the board of education in writing to the contrary on or before the fifteenth day of June, and a written contract for the succeeding year shall be executed accordingly."
In response to your first question, we do not believe a local superintendent of schools is fulfilling the responsibilities of the office if there is a failure to make recommendations regarding personnel matters. We intimated this belief in OAG 77-308, copy attached. We believe when the general duties of a local superintendent, set forth in KRS 160.370, are considered along with the language contained in KRS 160.380 and KRS 161.750, there can be little doubt as to the responsibility of the superintendent in making recommendations on teacher contract matters. In fact, we have concluded that a local board of education cannot act without the recommendation of the superintendent on most personnel matters. See OAG 79-78, supra. Also, KRS 160.370 directs that the superintendent "shall be the professional advisor of the board in all matters." KRS 160.370 additionally states that the superintendent shall see that the rules and regulations of the local board are carried into effect. It should be noted here that the local board of education is required, pursuant to KRS 160.340(2)(e) to promulgate and adopt board policies relating to "certified employees, including fringe benefits, salary schedules, non-classroom duties, in-service training, teacher-student load, hiring, assignment, transfer, dismissal, suspension, reinstatement, promotion and demotion." Such a local board policy could contain a provision that the superintendent of schools will make a recommendation on all certified employees (teacher) personnel matters.
In view of the above, our answer to your first question is that although a superintendent could refuse to make a recommendation to the board regarding the renewal or not of a teacher's contract, we believe such refusal would be a neglect of a lawfully imposed duty. It should be noted that if a teacher on limited contract does not receive notice of nonrenewal by April 30, by law the teacher's contract is deemed renewed. KRS 161.750(1). Again, see OAG 77-308, supra.
As for your second question, we believe a local board can direct the superintendent to make a recommendation relative to a teacher's contract. As set out above, we are of the opinion a recommendation is required by law and may be a part of appropriately adopted local board policies. The refusal by a superintendent to make a recommendation could be considered legal cause for the superintendent's removal. KRS 160.350; see
Smith v. Bd. of Ed. of Ludlow, 264 Ky. 150, 94 S.W.2d 321 (1936); KRS 156.132.
The answer to your third question follows from our response to the first two questions. If there is no recommendation by a superintendent and no action by the board, the teacher will be deemed reemployed. KRS 161.750(1). The board of education unequivocally cannot vote for nonrenewal of a teacher's contract absent a recommendation of the superintendent. KRS 161.750(1) and (2).
The effect of a tie vote is that the matter being voted upon has not been passed or approved. See OAG 73-333, copy attached.
Your fifth question concerning the legal effect of an abstention vote is covered by the case law developed in
Payne v. Petrie, Ky., 419 S.W.2d 761 (1967). The Court stated, at 763:
"In
Pierson-Trapp Co. v. Knippenberg, Ky., 387 S.W.2d 587, 588, it was written:
'The rule is that when a quorum of a governing body is present those members who are present and do not vote will be considered as acquiescing with the majority.'
We adhere to that rule, but amplify it to point out that the word 'majority' as used in the rule does not mean a numerical majority of the entire elected membership of the board, but means a majority of those present and voting. "
The Court continued, saying that under the rule, a "pass" vote is to be counted as voting with the majority.
In your last question, you asked about a certified employee being employed as a coach and teacher. "Employment of a teacher, under either a limited or a continuing contract, is employment in the school district only and not in a particular position or school." KRS 161.760(3). The teacher may be assigned "extra service, administrative and/or supervisory duties and responsibilities" for which additional remuneration is made, such as for coaching. If employment of a teacher is going to be linked to a particular position or responsibility, then we believe the superintendent should recommend accordingly; and by like token the board is not at liberty to, in essence, vote upon only part of the recommendation. Note that if a teacher has been receiving extra salary for an extra responsibility, and that responsibility is reduced and accompanied by a corresponding reduction in salary, notice and specific reason or reasons for the reduction must be furnished the teacher by May 15. See KRS 161.760(2).
Footnotes
Footnotes
* In OAG 79-204 this office concluded the Age Discrimination in Employment Act Amendments of 1978 effectively amended this statute to read "age of seventy (70)."