Request By:
Mr. William E. Sloan
Attorney at Law
Security Trust Building
Lexington, KY 40507-1285
Opinion
Opinion By: Frederic J. Cowan, Attorney General; By: Patricia Todd Thomas, Assistant Attorney General
As the attorney for the Board of Education of Fayette County, you have requested the Office of the Attorney General to reconsider OAG 75-370. That opinion addressed the constitutionality of KRS 161.770 which allows a school board to grant sabbatical leave to a public school teacher or superintendent. Specifically, the issue under consideration was whether the payment by the local board of education of all or a portion of an employee's salary is constitutional in light of Sections 3 and 186 of the Kentucky Constitution.
KRS 161.770(1) permits a board of education to pay a sum of money equivalent to all or any portion of salary to a teacher or superintendent who has been granted leave for educational or professional purposes. In consideration for such payments, the person taking the leave must agree in writing to return to employment with the board for no less than two (2) years. KRS 161.770 specifically reads:
(1) Upon written request of a teacher or superintendent, a board of education may grant a leave of absence for a period of not more than two (2) consecutive school years for educational or professional purposes, and shall grant such leave where illness, maternity, adoption of a child or children, or other disability is the reason for the request. Upon subsequent request, such leave may be renewed by the board. A board of education may pay a sum of money equivalent to all or any portion of salary to a teacher or superintendent who has been granted leave for educational or professional purposes if the person taking said leave agrees in writing to return to employment with the board for no less than two (2) years.
(2) Without request, a board of education may grant leave of absence and renewals thereof to any teacher or superintendent because of physical or mental disability, but such teacher or superintendent shall have the right to a hearing and appeal on such unrequested leave of absence or its renewal in accordance with the provisions for hearing and appeal in KRS 161.790.
(3) Upon the return to service of a teacher or superintendent at the expiration of a leave of absence, he shall resume the contract status which he held prior to such leave.
In addition, the statute was amended in 1976 to include subsection (4) which reads:
(4) Payments to any teacher or superintendent under this section by a board of education are intended and presumed to be for and in consideration of services rendered and for the benefit of the common schools and such payments do not affect the eligibility of any school district to share in the distribution of funds from the public school foundation program funds as established in KRS Chapter 157.
Clearly, the drafters of this amendment anticipated constitutional attacks that the payment of a portion of a teacher's salary is a public emolument, offensive to Sections 3 and 186 of the Kentucky Constitution. Section 3 of the Constitution prohibits the grant of exclusive public emoluments to any man or set of men, except in consideraiton of public services. Necessarily, KRS 161.770(1) complies with Section 3 of the Constitution because of the requirement that the recipient give a written statement of agreement to return to employment in consideration of the full or partial funding of the sabbatical. Section 186 directs school funds shall be used for the maintenance of the public schools and for no other purpose. Since KRS 161.770(4) establishes the sabbatical leave payments are intended and presumed to be for and in consideration of services rendered and for the benefit of the common schools, it is not repugnant to Section 186.
OAG 75-370 opined the payment by a board of education for the sabbatical leave of a principal or a teacher was unconstitutional under Section 3 of the Constitution. In rescinding the opinion, we call attention to several factual differences of that opinion and the questions you have presented. First, OAG 75-370 was given prior to the 1976 amendment which established the presumption the payments are for the benefit of the schools. Second, the question presented to Mr. Miller addressed the sabbatical leave of a principal or teacher. The 1976 amendments to KRS 161.770 do not extend to the granting of a sabbatical to a principal, only to a teacher or a superintendent. Third and most important, OAG 75-370 did not address an exchange of services for the sabbatical leave. As has been discussed, Section 3 of the Constitution, which was the basis for the conclusion sabbatical leaves for public school teachers were unconstitutional, prohibits public emoluments to be granted to an individual except when given in consideration of public services.
Neither the Kentucky Supreme Court nor the Court of Appeals has addressed this particular issue. However, some insight may be given by the Court in Miller v. Robertson, 306 Ky. 653, 208 S.W.2d 977 (1948). In discussing the constitutionality of payments to a Commonwealth's Attorney while he was serving in the U.S. Army, the court held:
1. Section 3 proclaims the equality of men in our social compact and, among other things, declares that no grant of 'separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services.' This particular provision has not been, nor should it be, too strictly interpreted, else public service and public welfare suffer.
In conclusion, based upon the foregoing, OAG 75-370 is rescinded. It is the opinion of this Office that the granting of sabbatical leave to a teacher or superintendent is constitutional so long as the teacher or superintendent agrees to extend at least two years of future services to the school board.
In response to your final question, the school board, in choosing the person who will be granted the sabbatical leave, is to choose a person who is appropriately qualified and will best serve the promotion of education and the general health and welfare of the pupils in the district over which the board has control.