Request By:
Neal Smith
Todd & Smith
204 Scott Avenue
P.O. Box 112
Pikeville, Kentucky 41501
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth Assistant Deputy Attorney General and Chief Counsel
You have asked, as the attorney for the Pike County Board of Education, for a consideration of several matters involving education. Your first concern is expressed in anticipation of significant reductions in funding in the Title I Program. You stated the Title I Program in the Pike County Schools employs several central office employees. The first question you present is, "Can we transfer these administrative employees to classroom teaching services due to the reduction in funding? " In connection with this question, you have also asked, "If seniority would come into play when deciding which of the administrative employees to transfer as a result of these reductions? "
In 1973, this Office rendered at least a couple of opinions which addressed problems in anticipation of a reduction in Title I funds. In OAG 73-383, copy attached, we pointed out that KRS 161.800 was not applicable to teachers on limited teaching contracts. We further concluded that KRS 161.800 does not apply to situations where the reduction of teaching personnel is necessary because of a shortage of funds. Lastly, it was stated we believe that seniority gives no special preference among non-tenure teachers.
The other opinion to reference is OAG 73-702, copy attached. In that opinion, we concluded, "that a teacher who is teaching pupils and subject matter for which Title I funds are provided is in no different status from any other teacher in the public school program, and a Title I teacher's contractual rights stand on the same footing as those of teachers whose salaries are in part provided by the Minimum Foundation Program."
The above two opinions, while pertinent to your concerns, do not really answer your questions. You are asking about transferring administrative employees to classroom teaching services. This being the case, we of course need to look at KRS 161.765 and also the definitions found at KRS 161.720(8) and (9). KRS 161.720(8) reads as follows:
"The term 'administrator' for the purpose of KRS 161.765 shall mean a certified employe, below the rank of superintendent, who devotes the majority of his employed time to service as a principal, assistant principal, supervisor, coordinator, director, assistant director, administrative assistant, finance officer, pupil personnel worker, guidance counselor, or school business administrator, or who holds a position in which he evaluates or supervises board employes or recommends personnel for employment or discharge. The term 'administrator' shall also include those assistant, associate or deputy superintendents who do not fall within the definition of 'superintendent' as set forth in subsection (7) of this section."
The most recent appellate case to consider this subsection of school law was
Bradshaw v. Bd. of Ed. of Taylor Cty., Ky.App., 607 S.W.2d 427 (1980). The important language from this decision, we believe, is the following:
"In seeking to determine the legislative intent expressed in this section, we note at the outset that various public school positions which are primarily executive or administrative in nature are specifically named as falling within the definition of administrator. Yet one who holds one of these positions is an administrator only if he devotes a majority of his employed time to service in one of those positions. . . . It seems equally clear that the statutory language relied upon by the appellant is intended to apply to one who holds a position not listed in the statute but, because the majority of his time is consumed in the evaluation and supervision of board employees, whose position becomes primarily administrative or executive in nature. No other interpretation makes sense when this section is considered as a whole. Surely the legislative intent was not to classify as an administrator one who, incidental to his primary duties which are not administrative in nature, occasionally evaluates or supervises other board employees, . . ." 607 S.W.2d at 428. (Emphasis supplied.)
Thus, in view of the above, we suggest you carefully examine whether you actually have "administrators" as defined and interpreted.
If you are dealing with administrators, then you are required to proceed in keeping with KRS 161.765. For individuals who have failed to hold administrative positions in a school district for at least three years, you are not required to implement the due process procedures including a hearing outlined in KRS 161.765, but must only follow KRS 161.760. The KRS 161.760 requirements are written notice of the reduction in administrative or supervisory responsibility and reduction of corresponding pay with a statement of specific reason or reasons for the reduction and this written notice must be received by the individual with less than three years administrative experience by May 15.
As for those administrators who have the requisite three years or more administrative experience in a school district (those years need not be in the same administrative position, OAG 77-157, copy attached) , before a school district may demote them back into the classoroom, the detailed due process procedures of KRS 161.765(2) must be followed. You stated in this regard you were bothered by the reference in this subsection to "grounds" for the demotion. It has been our belief for some time that KRS 161.765 and the demotion process was not intended by the General Assembly to be available solely as a disciplinary measure to be taken only if an administrator was not adequately performing expected administrative services. That is, we believe "grounds" can also be premised upon budgetary problems, for example.
The Court of Appeals in Miller v. Board of Ed. of Hardin Cty., Ky.App. 610 S.W.2d 935 (1980) recognized that there did not exist any parallelism between the "grounds" language in KRS 161.765 and the specific "cause" requirements for termination of a certified employee's contract in KRS 161.790. The Court said it was led to the conclusion that, "The Legislature intended to leave the grounds for demotion of an administrator to the sound discretion of the local superintendent and board of education. Of course, those grounds may not be arbitrary or unreasonable or otherwise be violative of a right protected by the State or Federal Constitutions." 610 S.W.2d at 937. This case is also important from the standpoint of the time by which the demotion procedures of KRS 161.765 have to be completed. The Court concluded that an administrator protected by the "fair demotion" law, KRS 161.765, should also have the benefit of the procedural safeguards of KRS 161.760(2). Thus, if a school district, with the recommendation of the local superintendent, intends to demote an administrator (s) with three or more years administrative service, it is our belief, based upon the Miller decision, that the written notice of demotion and the opportunity for a due process hearing under KRS 161.765 must be completed before May 15.
As to your question about seniority being a factor in deciding which of the administrative employees to transfer as a result of reductions, we do not believe seniority is required by statute to come into play. Compare and note, however, that we have advised that school districts may adopt a procedure of considering seniority as a factor in a reduction of administrators situation. See OAG 78-637, copy attached. To the best of our knowledge, the only place in our school law where the term "seniority" is used and is a factor mandated to be considered is in KRS 161.800. However, from the facts presented, you are not in a position to utilize KRS 161.800. Teachers and administrators, even those protected under KRS 161.765 with more than three years of administrative service, do not have a statutorily protected right to a particular teaching or administrative position. See KRS 161.760(3).
We trust the above adequately responds to your questions. We are enclosing copies of the information you requested on resignations.