Request By:
Mr. Bert A. Bennett
Superintendent of Schools
Kenton County Board of Education
5533 Madison Pike
Independence, Kentucky 41051
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
As the Superintendent of the Kenton County Schools you have asked the Office of the Attorney General to consider a matter relating to the levy of occupational taxes against teachers who teach in a school in municipalities which have levied such a tax. You cite in your letter that in the Kenton County school system there are three schools located in such municipalities; one, which is located in Covington, has a payroll tax of 2-1/2%, and that two are located in Edgewood, which have a payroll tax of 3/4%. You noted that this places an extra tax burden on all staff members employed at these three schools. You have asked whether the Kenton County Board of Education may pay this tax to the municipalities directly, based upon the payroll of the staff employed in these schools only without violating the "single salary schedule" provision of the Minimum Foundation Program. It is the opinion of the Office of the Attorney General that due to amendments made by the 1978 General Assembly, have a differential in pay from these single salary schedules due to the levy of payroll taxes.
This office, in OAG 77-427 and 1956 OAG 38,840, copies attached, concluded just the opposite from the conclusion set forth above. The basis for this conclusion was the then language defining "single salary schedule. " KRS 157.320(12). That definition was as follows:
"'Single salary schedule' means a schedule adopted by a local board and approved by the state board of education upon recommendation of the superinten-ent of public instruction which is based on training, experience and such other factors as the state board of education may approve and which does not discriminate between salaries paid elementary and secondary teachers. "
The opinion stated that the language in KRS 157.320(12) to the effect that a local board of education may utilize factors other than training and experience to determine the salary schedule, permitted salary schedules to be increased for those teachers in an amount equal to an imposed occupational tax.
In 1978, the General Assembly, in Senate Bill 312, amended KRS 157.320(12) to read:
"'Single salary schedule' means a schedule adopted by a local board from which all teachers are paid for one hundred eighty-five (185) days and is based on training and experience and which does not discriminate between salaries paid elementary and secondary teachers. "
Thus, the "such other factors" language relied upon in the prior opinions of this office to sanction the increase of salaries for teachers to off-set an occupational tax no longer exists. Try as we have, we know of no basis, presently, to support a continued conclusion that such an increase and thereby deviation from a single salary schedule due to occupational taxes is permissible.
In view of the above, it is our opinion that the "single salary schedule" required to be developed by each public common school and approved by the State Board for Elementary and Secondary Education may not include factors other than training and experience. Therefore, a local board of education may not increase the salary of any teacher in an amount equal to an occupational tax imposed.