Request By:
Dr. Faurest Coogle
Superintendent
Franklin County Public Schools
916 East Main Street
P.O. Box 980
Frankfort, Kentucky 40602Mr. Sherron Jackson
661 Montclair Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letters you requested an opinion of the Attorney General interpreting KRS 160.352, Section 76 of the Kentucky Education Reform Act, passed by the General Assembly in 1990. That statute requires that each board of education appoint a superintendent of schools upon receiving recommendations from a screening committee. The committee is to be established within thirty days following a determination by a board of education that a vacancy exists or will exist for the office of superintendent. Your question concerns the interpretation of subsections (2) and (3) which read:
(2) A screening committee shall be composed of:
(a) Two (2) teachers, elected by the teachers in the district;
(b) One (1) board of education member, appointed by the board chairman;
(c) One (1) principal, elected by the principals in the district; and
(d) One (1) parent, elected by the presidents of the parent-teacher organizations of the schools in the district.
(3) Prior to appointing a superintendent of schools, the board of education shall consider the recommendations of the screening committee, but the board shall not be required to appoint a superintendent from the committee's recommendations.
Your concerns deal specifically with the fact that several groups are not represented on the above screening committee, such as minorities, central office administrators, and classified employees. You ask, in essence, whether the local board may expand the screening committee to include representation from other groups.
It is the opinion of this office that the screening committee may only be composed of those representatives authorized by KRS 160.352. "In the interpretation and construction of statutes, the primary rule is to ascertain and give effect to the intention of the Legislature and that intention must be determined from the language of the statute itself if possible." Moore v. Alsmiller, 289 Ky. 682, 160 S.W.2d 10 (1942). The statute in question, KRS 160.352, contains no ambiguity in describing the members to be included on a screening committee. Moreover, "[I]t is a primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned." Smith v. Wedding, Ky., 303 S.W.2d 322 (1957).
Also, although KRS 160.290 authorizes each board of education to make and adopt regulations for the school district that statute requires that "the rules, regulations, and by-laws made by a board of education shall be consistent with the general school laws of the state . . . . " KRS 160.290(2). It is well established that administrative bodies, which include state boards, " . . . cannot by promulgation of a rule add to or take from the requirement of the statute it is administering." Portwood v. Falls City Brewing Company, Ky., App., 318 S.W.2d 535 (1958). The Court cited 42 Am. Jur., Public Administration Law, Section 99, Page 428, as follows:
Administrative rules and regulations, to be valid, must be within the authority conferred upon the administrative agency. The power to make regulations is not the power to legislate in the true sense, and under the guise of regulation legislation may not be enacted. The statute which is being administered may not be altered or added to by the exercise of a power to make regulations thereunder. A rule which is broader than the statute empowering the making of rules cannot be sustained. Administrative authorities must strictly adhere to the standards, policies, and limitations provided in the statutes vesting power in them. Regulations are valid only as subordinate rules and when found to be within the framework of the policy which the legislature has sufficiently defined . . . .
This standard was later codified in Kentucky in KRS 13A.130(1), which states:
An administrative body shall not by internal policy, memorandum, or other form of action:
(a) Modify a statute or administrative regulation;
(b) Expand upon or limit a statute or administrative regulation; . . .
(2) Any administrative body memorandum, internal policy, or other form of action violative of this section with the spirit thereof is null, void, and unenforceable.
Moreover, KRS 13A.120(1)(e) and (2) state:
An administrative body shall not promulgate administrative regulations:
* * * *
(e) when a statute prescribes the same or similar procedure for the matter regulated . . . .
(2) Any administrative regulation in violation of this section or the spirit thereof is null, void, and unenforceable.
Despite the clear language of KRS 160.352(2), another statute addresses legislative intent regarding minority representation. KRS 156.500 states:
Appointments to reflect reasonable minority representation. - The General Assembly directs that appointments made by the appointing authority to every board, commission, council or other type of advisory or decision-making body created or reenacted by the Education Reform Act of 1990 reflects reasonable minority representation of the membership and that active minority participation at every level of implementation be continually encouraged.
The application of this statute to the screening committee set forth in KRS 160.352 is limited by the manner in which selection is to occur. Only the board member is appointed; the other representatives are elected.
Accordingly, it is the opinion of this office that a screening committee may be composed only of those individuals expressly mentioned in KRS 160.352. To appoint additional members by unilateral action on the part of the board or purusant to a regulation passed by the board of education would be in violation of KRS 13A.130 and KRS 13A.120.
Nevertheless, while the board of education receives recommendations from the screening committee concerning the appointment of a superintendent, the board is not required to appoint a superintendent from the committee's recommendations. KRS 160.352(3). Therefore, it is apparent that the board of education has the discretion to consult with and to receive recommendations, as well, from other sources than the committee, i.e., interested citizens or groups of citizens, in order to insure consideration of qualified applicants. This would enable the Board to honor its commitment to Affirmative Action, for example, to the extent that this has not been accomplished through representation on the screening committee.
Interested parties might also contact members of the screening committee to furnish information on qualified applicants and concerns regarding the selection process.
Accordingly, while we find that the screening committee is limited to representation by two teachers, one board of education member, one principal and one parent, as set forth in the statute, the possibility exists for other interested groups or individuals to share any and all information with the board of education concerning qualified applicants.
1990
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