Request By:
Robert L. Summers, Executive Secretary
Kentucky Education Association
101 West Muhammad Ali Boulevard
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General
You have presented to this Office for consideration two questions relative to the legal relationship between Kentucky local school boards and the teachers employed by those boards as to the school year for which they are entitled to be paid. As background to your questions you related the following information:
"Order 82-96 of the Secretary of Finance, dated August 13, 1981, purports 'to reduce the appropriations for Fiscal Year 1981-82 . . . .' Within the reduction to the appropriation for the 'School Foundation Program' is the following item:
"'Funding for two of the four in-service days for teachers has been eliminated from the budget. This will result in an appropriation reduction of $5,367,700. Four inservice days was first mandated for fiscal year 1977.' ( Budget Cutback Explanation Document; August 24, 1981; Office for Policy and Management, Department of Finance)
"In the 1982 session of the General Assembly, identical appropriation bills have been introduced -- Senate Bill No. 124 and House Bill No. 295. These two bills contain the following provision:
"'It is the intent of the General Assembly herein to ratify and confirm the appropriation levels appearing in Orders 81-151 and 82-96 of the Secretary of Finance as the General Fund appropriations for fiscal year 1980-81 and fiscal year 1981-82, respectively, for the offices, boards, commissions, institutions, subdivisions and agencies of the Government of the Commonwealth of Kentucky, except so much thereof as relates to the appropriation to the Local Government Economic Assistance Fund for fiscal year 1981-82, which sum shall be betermined as provided by KRS 45.450; it is the further intent of the General Assembly herein, the provisions of any other law of the Commonwealth to the contrary notwithstanding, to ratify and confirm the advances, transfers and lapsing to the General Fund of all non-General Fund monies as identified in said Orders 81-151 and 82-96 of the Secretary of Finance, and to that end, the General Assembly hereby expressly ratifies, adopts, and enacts the appropriation levels contained in said Orders 81-151 and 82-96, including those provided for the Foundation Program as set forth and contained in KRS Chapters 157 and 157A and in Chapter 109 of the 1980 Acts of the General Assembly, as the appropriations for the offices, boards, commissions, institution, subdivisions, and agencies of the Government of the Commonwealth for fiscal year 1980-81 and fiscal year 1981-82, and to the extent in conflict therewith the appropriation levels set forth in Part I, Chapter 109 of the 1980 Acts of the General Assembly shall be read as conforming to the levels of appropriation hereby enacted.' (pp. 121-122 of SB 124 and HB 295);" (Emphasis yours.)
You stated that as a result of the related state action taken, some boards of education in the Commonwealth have initiated plans to reduce the salaries of teachers in the school systems in an amount equal to two days of pay. The two questions you have asked are:
"1. May a board of education reduce the number of days in a school calendar below 185 days and make a corresponding reduction in the salaries of its teachers?
"2. If boards of education do not have authority to reduce the salary and number of days of work for teachers, will a board of education be liable to its teachers in damages for back pay if such reduction is made?"
The first issue we must address in connection with your questions is whether under the regulations of this Office governing the rendering of official opinions we may properly respond. Administrative Regulation 40 KAR 1:020, Requests for Opinions, Section 4, reads in full:
"Official opinions will be rendered under Sections 1, 2 and 3 only in response to questions relating to current factual situations; they will not be rendered in response to moot, hypothetical, or abstract questions, nor will they be rendered in response to questions involving matters being litigated or questions submitted in contemplation of litigation." (Emphasis added.)
You have mentioned in your letter, and, of course, we were already aware of the pending litigation in the Franklin Circuit Court between the Kentucky Education Association and others and Governor John Y. Brown, Jr. and others, Civil Action Number 81-CI-1189, filed August 31, 1981. The predominating question raised in that litigation is the legality of the action taken by the Governor and Secretary of Finance pursuant to KRS 45.160 in reducing appropriations in the 1980 Budget Bill, Ch. 109 of the 1980 Acts of the General Assembly. No local school boards are party defendants in this cause of action. This being the case, we do not believe the questions you have framed are being litigated. Please understand that this official opinion will in no respect discuss the legality of the reduction of budgeted amounts for education. And, frankly, we do not believe the resolution of that issue before the Franklin Circuit Court, one way or the other, is controlling in answering your questions.
Your questions, we believe, actually raise only one principal issue -- whether, irrespective of sources of funding, a local school board may eliminate from its school calendar two teacher in-service days and the corresponding salaries for these two days. It is the official opinion of this Office that local school boards may not legally eliminate days from the school district's calendar so as to pay their certified employees for less than 185 days of employment. To support our opinion, we believe all that is necessary is to review the pertinent school laws and regulations of the State Board of Education.
KRS 158.070 provides:
"(1) The minimum school term shall be one hundred eighty-five (185) days . . . .
"(3) Each local board of educaiion shall use four (4) days of the minimum school term for in-service professional development and planning activities for the professional staff without the presence of pupils. . . ."
KRS 157.320 reads in relevant part:
"As used in KRS 157.310 to 157.440, unless the context otherwise requires: . . .
"(13) 'Single salary schedule' means a schedule adopted by a local board from which all teachers are paid for one hundred eighty-five (185) days. . . ."
KRS 157.350 reads in relevant part:
"Each district which meets the following requirements shall be eligible to share in the distribution of funds from the public school foundation program funds:
"(1) Employs and compensates all teachers for not less than one hundred eighty-five (185) days, . . .
"(3) Compensates all teachers on the basis of a single salary schedule. . . ."
In addition, the State Board of Education has promulgated and adopted the following regulations:
"703 KAR 2:010. Terms and months.
"Section 1. The minimum school term of 185 days with a minimum six (6) hour day shall consist of nine (9) twenty (20) day school months and one (1) partial school month of five (5) days. Schools shall be in session a minimum of six (6) hours on each of these days except as otherwise provided by KRS 158.060, 158.070 and regulations of the State Board for Elementary and Secondary Education."
"703 KAR 2:020. Calendar.
"Section 8. Local boards of education shall use four (4) days of the minimum school term for in-service professional development and planning activities for the professional staff without the presence of pupils.
Proper approval for these four (4) days shall be secured from the State Department of Education."
The reduction in state appropriations to the Minimum Foundation Fund for teachers' salaries, legal or illegal, cannot be said to have reduced the number of days required for a minimum school term in the Commonwealth's public common schools. The law still requires 185 days and that four of these days be devoted to in-service training for public common school teachers. The elimination of state money for two in-service days did not take the requirement for the two days away. The local boards of a education at all times continue to have a legal obligation to have a 185 day minimum school term and of that minimum term the substantive law explicitly mandates that "each local board of education shall use four (4) days of the minimum school term for in-service professional development and planning activities for the professional staff without the presence of pupils. " KRS 158.070(3), supra. That a certain anticipated source of revenue fails to materialize cannot authorize a refusal by the local boards to honor the legal contractual obligations that exist with their teachers for at least a minimum school term. Pursuant to KRS 161.730, "each board of education shall enter into written contracts, either limited or continuing, for the employment of all teachers. 1 Even though the contracts entered into between local boards and their teachers fail to reference the minimum 185 day school term (and those districts using the Kentucky Department of Education form teacher contract in all likelihood do not) we are unconvinced these contracts could be construed to cover any period less than the 185 school days established by statute. We believe all full-time teachers in the public common schools have, by operation of law, a contract that entitles them to be paid for 185 school days, four of which are to be utilized as in-service and professional development and planning activities. The teachers employed by the local school boards for the 1981-82 school year have a vested right to employment and salary for at least 185 school days. Section 19 of the Kentucky Constitution provides: "No ex post facto law nor any law impairing the obligation of contracts, shall be enacted." The former Court of Appeals in Board of Education v. City of Louisville, 288 Ky. 656, 157 S.W.2d 337, 343 (1941) held that the strength of every contract lies in the right of the promisee to rely upon the constitutional security against the impairment of obligations. When the public school teachers stated the 1981-82 school year under contract they were committing themselves to providing teaching services for a full statutory minimum school term. The teachers were "obligating" themselves to the school districts for that period. In City of Covington v. Sanitation District No. 1, 301 S.W.2d 885, 887 (1957) stated: "The 'obligation' of a contract has been defined as 'the law which binds the parties thereto to the performance of their agreement'" (Citation omitted.) The possible reduction in state funds for teachers' salaries for two mandated in-service days in no way may be used to divorce the local school districts from their preexisting obligation of contracts for a minimum school term of 185 days.
We trust the above adequately answers your questions.
Footnotes
Footnotes
1 KRS 161.720(1) defines teacher: "The term 'teacher' for the purpose of KRS 161.720 to 161.810 shall mean any person for whom certification is required as a basis of employment in the public schools of the state with the exception of the superintendent."