Request By:
Mr. Michael A. Owsley
Attorney at Law
1110 College Street
P.O. Box 770
Bowling Green, Kentucky 42101
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
As the Attorney for the Bowling Green Board of Education, you have asked the Office of the Attorney General to render a formal opinion regarding the contract status of a teacher in the Bowling Green Independent School System. As background to your questions, you stated as follows:
At a meeting on August 25, 1977, Ms. Rita Carroll was employed by the Clark County Board of Education to commence teaching at the beginning of the 1977-78 school term. She continued to teach in the Clark County school system for four years through the 1980-81 school year. She was re-employed by the Clark County Board of Education on June 28, 1981, as a Title One teacher for the 1981-82 school year and would have been given a continuing contract. However, she was employed by the Bowling Green Board of Education on August 17, 1981, and the Clark County Board accepted her resignation on August 18, 1981. The Bowling Green Board of Education had adopted a policy that all teachers employed in the Bowling Green Independent School District who had tenure in another school district were required to serve a one year probationary period before being placed on tenure or continuing contract status. This policy was adopted following the enactment of the amendments to KRS 161.740 providing for the so-called transfer tenure and was in effect prior to Ms. Carroll's employment.
You further informed us that prior to April 30, 1982, the Bowling Green Board of Education found it necessary to reduce its staff, and that Ms. Carroll's contract was not renewed. However you stated other teachers subsequently resigned and openings were created such that Ms. Carroll was re-employed after July 15, 1982.
The questions you have presented for our consideration are as follows:
1. When Rita Carroll was re-employed by the Bowling Green Board of Education after July 15, 1982, should she have been given a limited or continuing contract?
2. Does a teacher who has taught the prerequisite four years and has been re-employed by a Board for the fifth year but resigns before signing a continuing contract and before performing any work at the beginning of her fifth year acquire tenure or continuing contract status in a school district? In other words, did Rita Carroll have tenure with the Clark County Board of Education when she resigned?
3. Does the seven month grace period included in KRS 161.740 apply only to teachers who resign their employment after July 15, 1982, or does it apply to any teacher who has been rehired after July 15, 1982, even though the "tenure" that the teacher is attempting to transfer was acquired more than seven months before July 15, 1982?
It is our belief and conclusion that Ms. Carroll was entitled to a continuing contract when employed by the Bowling Green Board of Education after July 15, 1982. The foundation for this position begins with the fact that Ms. Carroll had taught four out of six years in the Clark County School system and had been recommended for her fifth year of employment in that system which recommendation was approved by the Board of Education of Clark County. By operation of law, in view of these facts, Ms. Carroll was entitled to and did legally obtain continuing service contract status in the Clark County School system even though no written continuing service (tenure) contract was ever entered into to memorialize that status. See KRS 161.730.
We believe it must be remembered that teacher tenure is statutory and not actually contractual. See Gullet v. Sparks, Ky., 444 S.W.2d 901 (1969). We know from the case law that "where a teacher has completed the four year probationary period with limited contracts, thus attaining eligibility for a continuing contract, KRS 161.740 is the controlling statute." Singleton v. Bd. of Ed. of Harrodsburg, Ky., App., 553 S.W.2d 848, 850 (1977). And, due to statutory amendment not available for application in the Singleton case, KRS 161.750 must also now be considered.
KRS 161.740 sets out the qualifications to be met before a teacher is eligible to be considered for continuing service status. Pertinent to this question is subsection (1)(b) which reads:
"(1) Teachers eligible for continuing service status in any school district shall be those teachers who meet qualifications listed in this section:
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"(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. Each day served in the general assembly by a board of education employe during a regular, extraordinary, or organizational session shall be included in the computation of a year as defined in KRS 161.720(2)."
It seems to be clear from this provision just noted that if the board of education votes to employ the teacher for the fifth year after recommendation by the superintendent, continuing service status is at that point achieved and the statute then directs that a written continuing contract is to be issued. We believe the fixation of the employment status of a teacher in a school system comes with that approval vote by a majority of the board to employ, not the actual execution of a written continuing contract.
Further support for the position expressed above we believe is found in KRS 161.750(3) which provides:
"(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 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."
A superintendent has to make recommendations as to the employment of teachers so that timely consideration of the recommendations can be made by the board and if the action taken is for nonrenewal, written notice must be presented to the teacher (s) in question before April 30. KRS 161.750(2) and KRS 160.380. Subsection (3) of KRS 161.750 is saying that in the absence of being provided a written notice of nonrenewal by April 30, a teacher who meets the requirements of KRS 161.740(1)(b) or (c) is entitled to a continuing contract of employment. Also importantly in KRS 161.750(3), as concerns the facts relating to Ms. Carroll, we point out the statutory presumption that a teacher is presumed to have accepted employment unless written notification to the contrary is given to the employing board by June 15.
Applying the language in the statutes referenced above to Ms. Carroll's situation, we believe, required the conclusion we have made. She had taught the requisite four years. She was recommended for her fifth year of employment to the board and the Clark County Board of Education approved. There apparently was no notice before June 15, 1981, by Ms. Carroll that she would not be accepting the employment. The only thing not done was the signing of a written contract and, as we have stated above, although a written contract is required by law, it is not the execution of that contract that is critical to determining employment contract status.
In view of the above, we are of the opinion Ms. Carroll was vested with tenure rights in the Clark County School system when the Bowling Green Board of Education employed her on August 17, 1981. She terminated her continuing service contract rights with the Clark County system when she resigned on August 18, 1981. See KRS 161.720(4).
To this point we have only concluded and responded to your first two questions. In answer to your third question, we believe KRS 161.740(1)(c), as amended by the 1982 General Assembly, effective July 15, 1982, the so called "portable tenure law," may be applied to any teacher who either had already resigned or who since July 15, 1982, has resigned and seven months have not elapsed since the resignation. In either situation, at the time of the resignation, the teacher must have enjoyed continuing service contract status with the school district resigned from.
KRS 161.740(1)(c) now reads as follows:
"(1) Teachers eligible for continuing service status in any school district shall be those teachers who meet qualifications listed in this section:
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"(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."
We do not believe our construction of the new language in this subsection is an improper retroactive application of the law. See KRS 446.080. We are simply saying that the law cannot be reasonably interpreted to apply only to resignations occurring after July 15, 1982. The law ought to apply to teachers' situations as they exist on the first effective date of the enactment. If a teacher is in a post-resignation period as of July 15, so long as employment is achieved in another school system before the expiration of the seven months period, we believe the teacher is in a position to receive the benefit of the new law.
Considering the above against the facts concerning Ms. Carroll, we believe the only contract which could have been legally given to her by the Bowling Green Board of Education, after having served the school board regulation required probationary one year, was a continuing service contract and tenure. In a prior opinion of this office, OAG 81-68, copy attached, we took the position that the authorized one year probationary period under KRS 161.740(1)(c) could not be extended. As referenced above, KRS 161.750(3) provides that "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. " (Emphasis supplied). It is our belief Ms. Carroll, upon being re-employed for school year 1982-83 with the Bowling Green Board of Education was entitled to be given a continuing service or tenured contract.
We trust the above consideration of the facts and the appertaining law will be of assistance to you and the Bowling Green Board of Education. If you have further questions concerning this matter, please contact us.