Request By:
The Honorable Patricia Todd Thomas
Fayette County Public Schools
701 East Main Street
Lexington, Kentucky 40502-1699
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter on behalf of the Board of Education of Fayette County, you presented two questions concerning the termination of classified school employees.
Your first question asks whether the superintendent or the Board of Education has the authority to dismiss a classified employee. KRS 160.370, as amended in Section 89 of House Bill 940, clearly provides that the superintendent is responsible for the hiring and dismissal of all personnel in the school district. In addition, KRS 160.390, as amended by Section 90 of House Bill 940, states that the superintendent is responsible for all personnel actions, including, inter alia , hiring and dismissal of employees, and has the responsibility for reporting such actions to the board. In fact, all personnel actions taken by the superintendent are to be recorded in the minutes of the board of education at the next meeting following the action taken. Therefore, the only involvement of the board after July 13, 1990, is to receive notice of the action taken by the superintendent. This office finds no authority for the board to retain some right to hear charges concerning classified employees, to make a decision, and later to direct the superintendent on whether or not to dismiss the employee.
Your second question concerns how much due process is legally required when terminating a classified employee who serves without a written contract. You explained that, in Fayette County, the board of education hires classified employees, other than bus drivers or food service workers, only once during the employee's career with the schools; there is no annual renewal nor formal contract. You explained that the employee signs a confirmation which describes the hours that the employee is to work as well as the rate of compensation. The board policy 03.27, adopted in October, 1988, provided that classified employees were terminable at will on recommendation of the superintendent and approval by the board. The policy was amended and adopted in September, 1990, to read:
Classified employees may be terminated or suspended only by the superintendent who, at the first meeting following the actions, shall notify the Board of same. Such notification shall be recorded in the Board minutes.
The question of how much due process is required when dismissing classified employees is complex and the answer may vary depending on the facts and circumstances of each case. The Supreme Court has stated that procedural due process applies to deprivation of liberty and property interests that are protected by the Fourteenth Amendment to the United States Constitution.
Board of Regents v. Roth, 408 U.S., 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972).
Therefore, in examining a personnel action involving a classified employee, it is necessary, first, to determine whether the employee has been deprived of a protected interest, and, if so, then, to determine what procedures should be followed. Property interests may be defined by statute, by contract or by a mutually explicit understanding. Roth, supra.
Where an Ohio statute provided that school employees covered by civil service statutes might be terminated only for cause, with a right of appeal to the civil service commission, the Supreme Court found that the Ohio statute created a property interest in employment. Accordingly, in addition to the post-termination civil service hearing provided for by statute, some form of pre-termination hearing would be required as an initial check against improper decisions.
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 1095 S. Ct. 377, 102 L. Ed. 2d 365 (1985). While no Kentucky statute or regulation provides a property right in employment for classified school employees, it is necessary to examine any contractual agreement or evidence of mutual understanding.
Of particular help in defining the limits in this area is
Vail v. Board of Education of Paris Union Free School District No. 95, 706 F.2d 1435 (7th Cir. 1983), aff'd 466 U.S. 377 (1984). When the superintendent, on behalf of the school board, offered Vail a one year contract as athletic director and coach with an oral agreement to renew the contract for a second year, that oral promise created an implied contract of employment. When the board of education subsequently dismissed Vail without cause at the end of the first year, the courts held that Vail had been deprived of a property right in continued employment without due process. Vail, supra. The Supreme Court has also held that a property interest in continued employment may be created by rules and policies.
Perry v. Sindemann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 570 (1972).
In the situation presented, concerning classified employees (with the exception of bus drivers and food service workers who are regulated, in part, by federal law), it will be important to examine all employment rules and policies, all documentation concerning employment, as well as any oral assurances to ascertain whether a property right has been granted. Due process requirements will depend, in part, on the nature of the property right granted. However, at minimum, this office would advise that a pre-termination opportunity be given to the employee to present any relevant considerations regarding the employment decision to an appropriate official to prevent erroneous decisions.
We note that the amendment to the policy 03.27 is consistent with the current law which gives responsibility for all personnel actions to the superintendent of each district.