Request By:
Mr. Fred D. Williams
Superintendent
Fort Thomas City Schools
2356 Memorial Parkway
Fort Thomas, Kentucky 41075
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
You have requested the Office of the Attorney General to consider the employment history of a certified teacher with the Fort Thomas City Schools. Without reiterating in detail the work history, suffice it to be said that the teacher only worked one-half time in school years 1976-77, 1977-78, 1978-79 and 1979-80. In April 1980, the Fort Thomas Board of Education unanimously voted to grant this teacher a continuing service contract of employment. You further stated that during the 1980-81 school year the teacher continued to work on only a one-half time basis. One-half time employment was also served in the just concluded 1981-82 school term. You stated it is the Board's desire to have this teacher work one-half day in 1982-83 school year.
With the above synopsis of facts related, you presented the following questions:
Question Number 1. Did the Fort Thomas Board of Education have the legal right to award a continuing service contract to this teacher after she had completed four years of part-time teaching in the Fort Thomas school system?
Question Number 2. If the answer to Question Number 1 is in the negative what action needs to be taken by the Fort Thomas Board of Education to correct the earlier action when it awarded her a continuing service contract?
Question Number 3. How many days and for how many hours each day does a teacher have to teach in a one hundred eighty-five day school term in order to be given credit for a year under the tenure law?
We do not believe the Fort Thomas Board of Education had the legal right to grant a continuing service contract (lenure) to this teacher for the reasons stated below.
KRS 161.720(2), the definition section of the Kentucky Teacher Tenure Laws, describes the term "year" as follows:
* * *
"(2) The term 'year' as applied to terms of service means actual service of not less than seven (7) school months within a school year; provided, however, that any board of education may grant a leave of absence for professional advancement with full credit for service."
KRS 161.740(1) prescribes the eligibility requirements for a continuing service status contract in the following manner:
"(1) Teachers eligible for continuing service status in any school district shall be those teachers who meet qualifications listed in this section:
(a) Hold a standard or college certificate as defined in KRS 161.720 or meet the certification standards for vocational education teachers established by the state board of education;
(b) When a currently employed teacher is recommended for re-employment after teaching four (4) consecutive years in the same district, or after teaching four (4) years which shall fall within a period not to exceed six (6) years in the same district, the year of present employment included, the superintendent shall recommend said teacher for a continuing contract, and, if the teacher is employed by the board of education, a written continuing contract shall be issued.
(c) When a teacher has attained continuing contract status in one (1) district and becomes employed in another district, said teacher shall retain that status provided, however, that a district may require a one-year probationary period of service in that district before granting that status. For purposes of this subsection, the continuing contract of a teacher shall not be deemed to have terminated when the teacher leaves employment, all provisions of KRS 161.720 to 161.810 to the contrary notwithstanding, and the continuing service contract will be transferred to the next school district, under conditions herein set forth, for a period of up to seven (7) months from the time employment in the first school district has terminated. Nothing contained herein shall be construed to give a teacher a right to re-employment in the first school district during the seven (7) month period following termination.
(d) Service credit toward a continuing contract shall begin only when a teacher is properly certified as defined in KRS 161.720(6) or, in the case of a vocational education teacher, when the required certification standards established by the state board of education have been met.
In OAG 76-278, copy attached, this office considered the issue of half-time employment for purposes of continuing contract status. We concluded in that opinion pertinent to your first question:
". . . We believe that before a teacher, assuming other requirements are met, may be considered for continuing service contract status, the teacher must have taught at least one hundred and forty, six-hour days in the one hundred eighty-five day school term in order to be given credit for a year under the tenure law."
Thus, it is our position, in view of the facts you have related that the teacher in question in no school year since 1976-77 has taught at least one hundred forty, six-hour school days so as to be entitled to a year of credit toward tenure. As a matter of law, we do not believe the teacher meets the tenure contract requirements specified in KRS 161.740(1). Our conclusion on this issue has recently been buttressed by a decision of the Supreme Court of Kentucky in Board of Education of Bellevue, Kentucky v. Rothfuss, Ky., S.W.2d (decided August 31, 1982). The court in the Rothfuss case held that a contract of employment for a period of time other than a regular school year does not qualify the teacher toward continuing contract status.
In your second question, you desire to know the legal ramification of the Board's granting a tenure contract to the teacher if the proper eligibility requirements were determined to not have been met which is the case. We have also considered in the past this type of situation. In OAG 78-831, copy attached, we concluded, in a situation similar to that you have presented, that a tenure contract granted when the eligibility requirements had not been met is an ultra vires act, that is one beyond the powers of the board. That being so, it was our belief the continuing service contract was not binding, was void from the beginning and can have no legal effect. We believe the proper course of action for the Board to take would be to issue a limited contract to the teacher, after majority vote on a motion before the Board to do so, and further that the minutes of the Board should reference the previous minutes when the unlawful tenure contract had been approved.
We would also refer you to the case of Dause v. Bates, 369 F.Supp. 139 (W.D. Ky. 1973), copy attached. The Federal District Court in Dause, at page 149, stated that for the teacher to have had a valid tenured contract he was required to have all the statutory qualifications and that the mistake of the Board in giving him a tenure contract when he did not meet these requirements "could not constitute a waiver of their right to insist upon those qualifications. "
We have answered your third question above.