Request By:
Mr. Ronald L. Hager, Superintendent
Floyd County School District
Arnold Avenue
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Chris Gorman, Attorney General; Anne E. Keating, Assistant Attorney General
You have requested an opinion from this Office regarding actions of the Floyd County Board of Education taken on August 30, 1990. You stated that, following an illegal strike by the teachers of Floyd County, the local board of education entered into an agreement with the teachers that included the following:
(1) Subject to legal interpretation as determined by the Attorney General of the Commonwealth of Kentucky, all administrators in Floyd County will be cut back by one month in extended employment in 1991-92 or will be cut back to the state recommended work year. Before May 1991, the superintendent will make a recommendation to the board concerning the specific work year of each administrator.
(2) The 1990-91 Floyd County teachers' salary schedule will be increased by a minimum of 13.5 percent in 1991-92, if funds are available according to the Assistant Superintendent of Finance.
(3) Floyd County administrators will receive the state-required minimum 5 percent raise in 1991-92.
You note that, in 1989, the board adopted a policy that it would not enter into any special or exclusive relationship with any group. In light of the agreement and policy described above, you ask three questions:
1. Since this action by the local board was the direct result of an illegal strike, adopted after H.B. 940 became law and not recommended by the Superintendent, as Superintendent, am I required to carry into effect the provisions of the local board adopted agreement? If the agreement is legal, then would I be considered insubordinate if I did not carry out the terms of the agreement between the local board and the teachers union?
2. Since the local board of education is responsible for insuring adequate financing of the district's needs by levying taxes and adopting a budget, then does the local board determine the amount of extended employment and compensation thereof for personnel employed beyond the 185 day period?
3. Since the state statutes requires [sic] a single salary schedule, can the local board grant a 13.5 percent raise to teachers and only a 5.0 percent raise to administrators for the 1991-92 school year?
In answer to your first question, as an employee of the local board of education, you are bound to carry out the duties and responsibilities assigned by the board so long as those duties are permissible under the law. The superintendent is to prepare all budgets, salary schedules, and reports required by the local board of education and by the state board of elementary and secondary education. KRS 160.390. The local board has responsibility for control and management of the school district as a whole, and has the authority to make contracts and agreements. KRS 160.160(1), and 160.290(1). The board has management and control of school funds, and fixes the compensation of the employees. KRS 160.290(1).
Kentucky courts have held that public employees may not strike.
Jefferson County Teachers Association v. Board of Education, Ky., 463 S.W.2d 627 (1971). Nevertheless, they have held that public employees "have a right to join a national labor union and to organize themselves to carry out their collective wishes."
Board of Trustees of the University of Kentucky v. Public Employees Council, Ky., 571 S.W.2d 616, 621 (1978). Just as the Board of Trustees of the university had no duty to negotiate with a representative of the group of employees, neither did the local board of education have any duty to do so. Id at 621. So long as the local board remains free to negotiate or contract with any other group of employees, it may negotiate with a group of teachers if it so chooses. Id at 621. Therefore, while the board may have reached its agreement after, and due to, the strike, we do not find that the agreement, on that basis, is illegal. Assuming the agreement is legal, a superintendent who does not carry out the terms of the agreement could be considered insubordinate.
In answer to your second question, while the superintendent is responsible for personnel actions including, among other things, hiring and assignments, to the extent that the local board is responsible for control and management of school funds, the board may determine the amount of extended employment and compensation for personnel employed beyond the 185 day period. KRS 160.290(1). Any reduction in salary to a teacher (which includes most administrators for purposes of the teachers tenure law), must be accompanied by appropriate notice, as required by KRS 161.760.
In answer to your third question, KRS 157.320 and 702 KAR 3:070 set the standards on salary schedules.
(13) 'Single salary schedule' means a schedule adopted by a local board from which all teachers are paid for one hundred eighty-five (185) days and is based on training, experience, and such other factors as the State Board for Elementary and Secondary Education may approve and which does not discriminate between salaries paid elementary and secondary teachers. If the budget bill contains a minimum statewide salary schedule, no teacher shall be paid less than the amount specified in the biennial budget salary schedule for the individual teacher's educational qualifications and experience;
(14) 'Teacher' means any regular or special teacher, principal, supervisor, superintendent, assistant superintendent, librarian, director of pupil personnel, or other member of the teaching or professional staff engaged in the service of the public elementary and secondary school for whom certification is required as a term of employment.
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KRS 157.320(13) and (14).
702 KAR 3:070 requires each board of education to adopt and submit a single salary schedule to the State Board for Elementary and Secondary Education for approval. Each local board may also pay increments to professional employees who provide extra services which extend beyond the regular school day. Id at Section 3. The increments for extra duties are to be paid from local, or non-SEEK funding. Id at Section 4.
Upon review of these standards, it is clear that the "single salary schedule" adopted by Floyd County had to meet the minimum standard for all teachers (which includes administrators) , as defined in KRS 157.320, based on 185 days, and any minimum statewide salary schedule specified in the biennial budget. The schedule may be based on training, experience, and other factors that the State Board approves. Accordingly, the Floyd County teachers' salary schedule could be increased by a minimum of 13.5 percent in 1991-1992. However, an increase of 13.5 percent to the base pay would apply to administrators as well as other teachers. It is not clear from your letter whether the 5 percent increase for school administrators is instead of the 13.5 percent increase included in the "single salary schedule, " or whether the increase of the administrators is a net increase, after reduction in extended employment.
Extended employment and extra service assignments are discretionary expenditures by the local school board. KRS 158.070 and 702 KAR 3:070 Section 3. Therefore, it is permissible to cut back administrators by one month of extended employment for 1991-92, or back to the state recommended work year, so long as appropriate notice is given. KRS 161.761.
We note that the salary schedule was subject to approval by the State Board for Elementary and Secondary Education. For more information on the factors that may be included in the single salary schedule, you may wish to get in touch with the Office of School Administration and Finance in the Department of Education.