Request By:
Mr. Ken Campbell
Area Director for Uniserv
Route #9, Box 60A
Bowling Green, Kentucky 42101
Opinion
Opinion By: David L. Armstrong, Attorney General; BY: Robert L. Chenoweth Assistant Deputy Attorney General and Chief Counsel
You have asked a question concerning the law applicable to the salary for a teacher in Kentucky's public common schools. The pertinent achool law provision is KRS 161.760(1), which states in full follows:
"(1) Each board of education shall cause notice to be given annually not later than July 1 to each teacher who holds a contract valid for the succeeding school year, stating the best estimate as to the salary to be paid such teacher during such year. Such salary shall not be lower than the salary paid during the preceding school year unless such reduction be a part of a uniform plan affecting all teachers in the entire district, or unless there is a reduction of responsibilities. Nothing herein shall prevent increases of salary after the board's annual notice has been given. All teachers who refuse assignment shall notify the superintendent in writing not later than July 15."
The question you have presented in connection with this statutory subsection reads:
"If a local board of education has been paying a supplement to a teacher or a specific group of teachers for a period of several years and then decides to reduce the supplement a small amount over a period of years with the intent of eliminating it, is the board required and obligated under the above section of KRS 161.760 to show that reduction when providing its best estimate of salaries or salaries to be paid to the teacher or specific group of teachers? "
A simple "yes" or "no" will not answer this question.
We believe it is without question that the "salary" reference in the first sentence of this subsection means total compensation. See Cook v. Board of Ed. of Carter County, Ky.App., 576 S.W.2d 270 (1979) and the more recent case of Preuss v. Board of Educ. of Daviess Count, Ky.App., 667 S.W.2d 391 (1984). The command of this portion of the provision is that a board of education must provide to each teacher, by July 1, "the best estimate as to the salary to be paid such teacher during such year." There is nothing to indicate that this responsibility is to be met by providing a best estimate, singularly, of the three possible components of a teacher's salary - base pay, extended pay and extra service pay. See Preuss at 392. Rather we read this law to require only a best estimate of the total compensation figure to be paid a teacher during the following school year. We do recognize there is the intangible element of "good faith" involved in this requirement, an element this Office is not in a position to address in any given situation. This point was referenced in OAG 78-641, copy attached. Nevertheless, sight should not be lost of the fact that the law does not require the exact total compensation figure that the teacher is to be paid, but only the "best estimate" , more about which we wish to take up below.
In considering what legal significance should be given to the "best estimate, " language in KRS 161.760(1), the remainder of the subsection as well as subsection (3) must be reviewed. It is clear that a teacher's salary (total compensation) may be increased from the estimated amount after the July lst date so obviously no "ceiling" is created from the proffer of the best estimate. On the other hand, a "floor" salary figure is intended and required because of the language that the best estimate of salary may not "be lower than the salary paid during the preceeding school year unless such reduction be a part of a uniform plan affecting all teachers in the entire district, or unless there is a reduction of responsibilities." For the best estimated salary to be lower than the previous year salary based upon a reduction of responsibilities, subsection (3) requires that, by May 15, the teacher would have had to have been provided written notice of the reason(s) for the reduction in responsibilities and the amount of corresponding reduction in salary. Subsection (3) reads in pertinent part in this regard that "reduction of responsibility for a teacher may be accompanied by a corresponding reduction in salary provided that written notification setting forth the specific reason or reasons for reduction in responsibility shall be furnished to the teacher not later than May 15."
The other basis upon which a July 1 best estimated salary may entail a reduction in the salary paid a teacher the preceding year is where "such reduction . . . [is] a part of a uniform plan affecting all teachers in the entire district, . . . ." This basis is not as easily dealt with as is the reduction of responsibility factor. We do believe, however, that the application of this part of the statute has been exposed in the Preuss case, referenced earlier herein.
In the Preuss case, the Court of Appeals recognized that there were only the two situations allowed by KRS 161.760(1) for reduction of a teacher's compensation. The Court further asserted that if a teacher's duties (responsibilities) have not been decreased, just like the situation you have presented, then obviously the May 15 notification requirements of subsection (3) never come into play. This being so then there only remains the "uniform plan" provision to be relied upon for a reduction in salary. In addressing this factor, the Court of Appeals stated in Preuss, 667 S.W.2d at 394:
"If it is true that decrease of a component of salary for extra service (which only administrators are paid) is a decrease in salary even though total salary increases as Plaintiff has successfully argued, then it must also follow that teachers don't have to be decreased in order to have uniformity. Why not - because they perform no extra service and are paid for none. If the reduction of Plaintiff's salary had been in the 'base salary' component teachers would also have had to be reduced in order for the plan to have been uniform because teachers and administrators of the same rank and experience are paid the same base salary. But that was not the case here. The reduction decreased only a component of salary paid to principals, hence in order to be uniform it is necessary only that all principals with the same education, experience and other classifying factors received the smae pay throughout the entire system."
At this point we must carefully note that the KRS 161.760(1) in issue in Preuss has been reworked somewhat by the General Assembly in 1982. For the purpose of clarity we set out the former version of KRS 161.760(1) in relevant part below:
Pre-1982 Version
"(1) Each board of education shall cause notice to be given annually not later than July 1 to each teacher who holds a contract valid for the succeeding school year, stating the best estimate as to the salary to be paid such teacher during such year. Such salary shall not be lower than the salary paid during the preceding school year unless such reduction be a part of a uniform plan affecting the entire district, or unless there is a reduction or elimination of extra service, administrative and/or supervisory duties and responsibilities of the teacher or other certified personnel. Upon requests by the teacher, any reduction or elimination of extra service, administrative and/or supervisory duties and responsibilities shall be accompanied by a written statement of the specific reason or reasons for such reduction or elimination. But nothing herein shall prevent increases of salary after the board's annual notice has been given. All teachers who refuse assignment shall notify the superintendent in writing not later than July 15."
The present version of KRS 161.760(1) was quoted earlier herein.
As can be seen, the difference between the two versions of this school law is that we have gone from a reduction as a part of a uniform plan affecting the entire district to a reduction to a uniform plan affecting all teachers in the entire district. It is our view, however, that this legislative change has in no way affected the logic and conclusion of the Court of Appeals in Preuss. The simple reason for this view is that while there are three potential component parts of a teacher's salary, the salary of each teacher in a school district will not contain all three of these parts. In fact the salary of the majority of the teachers in a system will probably only contain one part, that of the base pay computed from the required single salary schedule in the school district. See KRS 157.320(12). Only for a few teachers will extended pay be a factor because most teachers have only a 9 1/4 months contract. Likewise, for only a few teachers will there be extra service pay. If the 1982 language of KRS 161.760(1) were to be read that a reduction of the total salary could only be accomplished if every teacher in the system received a like reduction this could only be possible if the reduction were made to the base pay component. You cannot reduce a component of salary a teacher never had. Thus, we believe the current language of KRS 161.760(1) must still be read in harmony with the Preuss decision. A reduction plan affecting all teachers receiving a salary component sum for the same reason would be in compliance with the law. Any other construction of this statutory provision creates a situation of once a teacher receives, for example, an extra service component as part of their salary, no reduction could ever thake place unless there was a reduction in responsibilities. This would be so if to reduce the extra service pay required that every teacher in the district had to have their pay likewise reduced, which would not be possible for the teachers receiving solely base pay. Therefore, we do not see that reducing a pay supplement for a specific group of teachers, where no decrease in responsibilities has occurred, is out of line with KRS 161.760(1) as amended.
The above brings us back to the thrust of your question. In light of the above, we are of the opinion KRS 161.760(1) in the first sentence requires only that, by July 1, a local board of education provide a best estimate of the total compensation to be received by the teacher. If there has been a decrease in extended pay or extra service pay due to a reduction in responsibilities, the teacher must have been appropriately so notified in writing by May 15. In that KRS 161.760(1) lacks any requirement for providing written notice by any date certain for a component reduction of a teacher's total salary based upon a uniform plan, we do not believe to be in compliance with the July 1 best estimate provision requires the board to also detail a uniform plan component reduction. By this we are not saying a board is devoid of any responsibility to inform the teachers affected, but only that such need not be a part of the July 1 best estimate requirement.
If you have any further questions concerning this matter, please contact us.