Request By:
Mr. William P. McCall
200 Mill Street
Leitchfield, Kentucky 42754
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
You have requested an interpretation of KRS 161.155 concerning the eligibility of the superintendent to reacquire 80 sick leave days that he had lost from Robertson and Morgan counties when he took a position in Grayson County. Compensation for unused sick leave days that remain when a teacher or employee of the school district retires is included in the individual's final salary and would apply toward his or her retirement benefits. KRS 161.155(9).
You indicate, in your letter, that the superintendent was employed in the Morgan County school district for several years as principal and superintendent, in Robertson County school district from 1978-1979 as superintendent, and from 1979 to present as superintendent in Grayson County. The superintendent plans to retire effective January 31, 1992.
In particular, you ask, whether KRS 161.155 allows the board to grant the superintendent sick days transferred from service in Robertson and Morgan counties. You also ask whether the board may "award bonus pay in this form . . . to a retiring superintendent. " You note, in passing, that you are not sure whether the sick leave days are necessary in order for the superintendent to meet the 27 year requirement for retirement.
Generally, in order to qualify for retirement, a member of the retirement system must have completed 27 years of service, notwithstanding accumlation of sick leave. KRS 161.600 and KRS 161.623(2). Once that threshold has been met, under KRS 161.155(8) and (9), the school board may approve compensation for unused sick leave days, and application of that compensation toward the teacher or employee's final salary.
In answer to your first question, KRS 161.155 allows the board to grant the superintendent only those unused sick leave days which he was entitled to keep upon transfer from Morgan County to Robertson County and from Robertson County to Grayson County.
Under KRS 161.155(1)(a), "teacher" consistently, has been defined to include "any person for whom certification is required as a basis of employment in the common schools of the state." This definition includes principals and superintendents, who are certified as teachers and as administrators.
Under KRS 161.155(9), a teacher who has transferred from one school district to another after July 15, 1981, is entitled to credit for unused sick leave days "to which entitled on the date of transfer," for the purpose of compensation at the time of retirement per KRS 161.155(8).
To determine how much sick leave the superintendent would have been entitled to transfer from Morgan County to Robertson County, and from Robertson County to Grayson County, it is necessary to examine the statute in effect at the times in question. In 1978, when the superintendent reportedly transferred to Robertson County, and in 1979 when he reportedly transferred to Grayson County, KRS 161.155(3) provided, in part:
Days of sick leave not taken by a teacher during any school year shall accumulate without limitation and be credited to that teacher. Accumulated sick leave may be taken in any school year. . . . Any accumulated sick leave days, not to exceed thirty (30) days, credited to a teacher shall remain so credited in the event he transfers his place of employment from one school district to another within the state.
This office has interpreted that language to allow a teacher who transfers from one school district to another to transfer 30 days of sick leave from the first to the second district and to be compensated for unused sick leave at retirement. OAG 82-316, p. 2.
In the situation presented, we find no authority that would have enabled the superintendent to transfer more than 30 days of sick leave from Morgan to Robertson County, and, subsequently, from Robertson County to Grayson County. Once in Grayson County, the superintendent could accumulate sick leave days without limitation. KRS 161.155(3). Therefore, the board needs to look at the number of days that were transferred in 1979, and to add those days, up to a maximum of 30, to the days accrued while in Grayson County.
In answer to your second question, it is the opinion of this office that compensation for unused sick leave at time of retirement does not constitute a bonus, in contravention of Section 3 of the Kentucky Constitution, but constitutes part of retirement benefits. Upon examining pensions granted by the state and paid for entirely through taxation, Kentucky's highest court has stated:
The granting of a pension under such circumstances does not stand on the plane of a contract and does not vest any right in the pensioner. It is a periodical allowance as a reward for continuous faithfulness in the discharge of a public duty, or a gratuity bestowed in recognition of public service, of some class or group. This is within the reasonable discretion of the legislature and may be diminished or discontinued at its pleasure.
Board of Education v. City of Louisville, 288 Ky. 656, 157 S.W.2d 337, 345 (1941). Pointing out that the United States Supreme Court had recognized in United States v. Hall, 98 U.S. 343, 346, 25 L. Ed. 180 that the state has general power to grant a pension, the Kentucky Court of Appeals, the state's highest court at the time, added:
The pensioning of civil officers and employees of the government is of more recent origin. It is keeping in step with the social progress of the times in which the commercial world has come to recognize the wisdom and fairness of making such provisions for its employees. Teachers in the public schools are state employees and render public service. Board of Trustees of Fairview Graded Common School District v. Renfroe, 259 Ky. 644, 83 S.W.2d 27.
Board of Education v. City of Louisville , supra at 345. Accordingly, the court found that Section 3 of the Kentucky Constitution, which prohibits the grant of any public emolument or privilege to anyone except in return for public services, would not be violated.
In the situation that you present, it is the opinion of this office that KRS 161.155(8) provides a benefit upon retirement that is part of the state's pension plan for public school teachers, administrators, and employees. Therefore, we find that compensation for sick leave as set forth in KRS 161.155(8) and (9) is constitutionally permissible.