Request By:
Charles B. Wells, Executive Director
TSFA / AFT - Kentucky
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Herrick, Assistant Attorney General
Opinion of the Attorney General
In OAG 01-8, we concluded that elected faculty and staff members of the Board of Regents of the Kentucky Community and Technical College System ("KCTCS") should be permitted to vote on general issues of compensation affecting all faculty or all staff, but could be prohibited from voting on the salaries of individual members of those groups. Charles B. Wells, on behalf of the American Federation of Teachers, now requests an opinion as to whether these board members have the right to vote on the compensation of the president and administrative leadership of KCTCS. Written comments on this request have been solicited, and comments have been received from the respective general counsel for KCTCS and TSFA/AFT.
KRS 164.289 states as follows:
Notwithstanding any other provision of KRS Chapter 164, the faculty member of any governing board of any postsecondary educational institution supported in whole or in part by state funds, whether or not described as nonvoting, shall have the right to vote on all matters except that of faculty compensation.
KCTCS, in practice, applies KRS 164.289 to board members representing non-teaching staff, as well as to those representing the teaching faculty. This is because, as explained in its comments, KCTCS has always imposed upon itself a parallel treatment of faculty and staff regents: "The KCTCS Board of Regents referenced and adopted KRS 164.289 in its early bylaws, and ruled that staff members also would be bound not to vote for compensation matters involving staff. " Moreover, since our decision in OAG 01-8, KCTCS has continued to treat the voting rights of staff regents in accordance with those of faculty regents.
KCTCS maintains that faculty and staff regents do not have the right to vote on the salaries of the KCTCS president and administrators under KRS 164.289 because such voting would create a conflict of interest. Additionally, KCTCS requests that we revisit OAG 01-8's conclusion that the faculty and staff regents should be allowed to vote on collective salary decisions affecting their respective groups.
TSFA/AFT argues that the denial of voting rights on the salaries of the president and administrators amounts to an exercise of "absolute and arbitrary power" in violation of Section 2 of the Kentucky Constitution. It is unnecessary for us to reach this constitutional question, however, since the issues herein can be determined on statutory grounds alone. Cf.
Dawson v. Birenbaum, Ky., 968 S.W.2d 663, 666 (1998).
Voting on compensation of president and administrators
KRS 164.321 sets forth the membership of the KCTCS Board of Regents as follows, in pertinent part:
(1)(b) The board of the Kentucky Community and Technical College System shall consist of eight (8) members appointed by the Governor, two (2) members of the teaching faculty, two (2) members of the nonteaching personnel, and two (2) members of the student body.
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(6)(b) The faculty members ? shall be represented by one (1) faculty member elected from the community colleges and one (1) faculty member elected from the technical institutions? A faculty member shall be ineligible to continue to serve as a member of the board if he or she ceases to be a member of the faculty at one (1) of the institutions within the system? These two (2) members shall collectively have one (1) vote which may be cast one-half (1/2) vote by each member.
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(7)(b) The nonteaching personnel members ? shall be any full-time staff member excluding a president, chancellor, vice president, academic dean, academic department chair, or other administrator. They shall represent all nonteaching employees in their respective branch institutions including, but not limited to, support and clerical personnel. One (1) member shall be a representative from the community colleges and one (1) member shall be a representative from the technical institutions? These two (2) members shall collectively have one (1) vote which may be cast one-half (1/2) vote by each member? A nonteaching employee shall be ineligible to continue to serve as a member of the board if that employee ceases to be a nonteaching employee at one (1) of the institutions within the system.
We stated in OAG 01-8 that KRS 164.289 permits KCTCS to prohibit faculty and staff regents from voting on either their own individual salaries or those of other individual members of the faculty and staff. Our reasoning was based on the characterization of KRS 164.289 as "a special protection against conflicts of interest" arising from the dual role as a voting regent and as the individual whose financial interest is affected by the vote (or a member of the class of employees to which the affected individual belongs). The parties agree that preventing conflicts of interest is the intent of the statute.
The question, then, is whether the conflict-of-interest rationale for the exception to KRS 164.289 voting rights applies in the case of decisions about the compensation of the president and administrative leadership of KCTCS. The express language of KRS 164.289 refers to a "faculty member" as not having the right to vote on "faculty compensation." Logically, if the statute encompasses a "staff member" of the board as well, by parallel construction under the KCTCS bylaws, the conflict-of-interest principle suggests that a staff member would not have the right to vote on "staff compensation," but would have the right to vote on all other matters. Accordingly, with regard to salaries of the president and administrators of KCTCS, faculty regents have the right to vote unless the president and administrators are "faculty, " and staff regents have the right to vote unless the president and administrators are "staff. "
The term "faculty, " in common usage, may or may not include the governing officers and administrators of a college or university. KRS 164.289 does not specifically define the term "faculty, " and there are no published court decisions interpreting the statute.
In construing particular statutory language, the statute should be interpreted "as a coherent whole ? [giving] consistent meaning to terms throughout the statute." In re Shelbyville Mixing Center, Inc., 288 B.R. 765, 768 (E.D. Ky. 2002). Furthermore, "interrelated sections ? enacted as parts of a single integrated statute ? must be construed in harmony with each other."
Daviess Co. v. Snyder, Ky., 556 S.W.2d 688, 691 (1977). KRS 164.289 should therefore be considered in light of any other statutes in pari material which were included in the same enactment.
To determine whether the president and administrators fall within the same class of employees as the faculty regents for conflict-of-interest purposes, we must refer to KRS 164.321, which defines the group from whom faculty regents are chosen. According to its legislative history, KRS 164.321 was amended in 1997, when KCTCS was created, as part of the same enactment in which KRS 164.289 was most recently amended.
KRS 164.321(1)(b) describes the faculty regents as "members of the teaching faculty. " (Emphasis added.) KCTCS maintains that "[t]he President is the chief academic officer and the chief administrative office [ sic ] of the System; therefore, his compensation clearly falls within the restrictions of KRS 164.289 as faculty. " Yet KCTCS does not assert that the president is one of the teachers at a community college or technical institution, as specified in KRS 164.321(6)(b), from whom the "teaching faculty" representative must be chosen. If the president is not a member of this group, the voting rights given to faculty regents by KRS 164.289 are not abridged by the conflict-of-interest exception.
The interpretation of KRS 164.289 in light of KRS 164.321 is consistent with our reasoning in OAG 68-611. In that opinion, we stated that it was permissible for the Board of Regents of Murray State University to establish a faculty senate, for which purpose "faculty member" would be defined as:
" ? a person who carries the rank of Professor, Associate Professor, Assistant Professor, Instructor, or Lecturer, and who spends over one-half of his working time in teaching and/or research and directly related activities. His position is thus distinguished from that of an administrative officer of the University, or a member of the non-academic staff. "
That decision required us to analyze what limits the applicable statutes placed on the definition of "faculty. " First, we looked to the former KRS 164.320(8) (the counterpart of today's KRS 164.321(6)), which gave the following "specific definition" of a non-voting faculty member of a board of regents: "The non-voting faculty member shall be a teaching or research member of the faculty of his respective university or college of the rank of assistant professor or above." We then noted that the term "faculty" was not specifically defined elsewhere in KRS Chapter 164, although it was used in other sections.
In determining whether any other statutes placed restrictions on the definition of "faculty, " we referred to KRS 164.360(3), on removal of faculty members, noting that one necessary characteristic of a faculty member was to enjoy "a protection against removal except for cause which is not possessed by an [ordinary] employee of the institution." Finally, we consulted BLACK'S LAW DICTIONARY (4th Ed. 1957), which defined "faculty of a college or university" as follows: "The corps of professors, instructors, tutors, and lecturers. To be distinguished from the board of trustees, who constitute the corporation. The teaching body." We ultimately concluded that a board of regents "could, consistent with the definition incorporated in subsection (8) of 164.320, approve reasonable regulations governing the difference between faculty status and employee or staff status." (Emphasis added.)
One of our subsequent opinions, however, was somewhat inconsistent in its analysis of the term "faculty" in relation to the provisions of KRS Chapter 164. In OAG 78-40, we opined that the Board of Regents of Murray State University, for the purpose of interpreting "faculty compensation" as used in KRS 164.289, was free to use a definition of "faculty" that differed significantly from the definition of a non-voting faculty member in KRS 164.320(7) (the same provision cited in OAG 68-611 as subsection (8)). In so doing, we cited OAG 68-611, but failed to follow that opinion's analysis of the statutes, simply stating that "there is no specific definition to be found and also certainly no reason to believe the term ["faculty" ] is as limited as found in KRS 164.320(7)." Yet, on the contrary, we did conclude in OAG 68-611 that the language in the former KRS 164.320(8) was a "specific definition," and further concluded that this definition was "incorporated" in the statute so that any definition of "faculty" used by the board of regents must be "consistent with" the limitations of that statute.
It is true that "a board of regents has the statutory authority to adopt ? a definition of 'faculty' ? to be used where not inconsistent with any statutory provision. " OAG 78-40. A board does not, however, have the authority to use a definition that is inconsistent with a statutory provision, such as the provision that defines a "faculty member" of the board. We therefore believe, as stated in OAG 68-611, that KRS 164.321 does place limits on the definition of "faculty" as used in KRS 164.289, and any statements to the contrary in OAG 78-40 cannot be relied upon as correct.
As a further matter, we note that OAG 78-40 undertook no analysis of the purpose for the exception to faculty voting rights in KRS 164.289. Our more recent interpretation in OAG 01-8, in which we ascertained the conflict-of-interest rationale for the exception, lends additional support to our present conclusion that faculty voting rights are only abridged as to the compensation of those "faculty" members from whom the representative regents are selected. The president of KCTCS, if not a member of the teaching faculty of a constituent institution, is not one of the persons whose salaries are exempted.
Nor does KCTCS claim that its top administrators other than the president are members of the teaching faculty, or indeed that they are "faculty" in any sense. With regard to them, KCTCS merely states: "Upper level administrators' salaries and compensation are not brought before the Board of Regents for a vote." Presumably, KCTCS only means that administration salaries are voted on as a group, rather than on an individual basis, or that the Board of Regents has chosen some indirect method for setting the administrators' compensation. Otherwise, it would be unclear what legal basis could exist for circumventing the Board of Regents on this important matter. KRS 164.365(1) provides:
Anything in any statute of the Commonwealth to the contrary notwithstanding, the power over and control of appointments, qualifications, salaries, and compensation payable out of the State Treasury or otherwise, promotions, and official relations of all employees of [KCTCS and the regional state universities] shall be under the exclusive jurisdiction of the respective governing boards of each of the institutions named.
Whether administrative salaries are determined as a group or individually, the Board of Regents ultimately has exclusive control of that determination. In any case, unless the upper-level administrators are members of the teaching faculty at a community college or technical institution, KRS 164.289 does not exclude their salary determinations from the voting rights of the faculty board members.
The statutes are even clearer with regard to the staff representatives on the Board of Regents. The term "staff, " as used by Mr. Wells, is expressed in Chapter 164 by the phrase "nonteaching personnel. " KRS 164.321(7)(b) identifies those employees eligible to represent nonteaching personnel on the Board of Regents as "any full-time staff member excluding a president, chancellor, vice president, academic dean, academic department chair, or other administrator. " The president and administrators are expressly excluded from the "nonteaching personnel" class. Therefore, applying the conflict-of-interest reasoning of KRS 164.289 pursuant to KCTCS bylaws, the nonteaching staff regents should likewise be permitted to vote on the compensation of the president and administrators of KCTCS.
Revisiting OAG 01-8
As mentioned above, KCTCS has requested that we revisit our prior conclusion in OAG 01-8 that faculty and staff regents should be allowed to vote on general compensation matters affecting their respective groups as a whole. In support of reversal of OAG 01-8, KCTCS asserts that if the faculty and staff members of the board were permitted to vote on both the president's salary and group compensation matters, the conflict-of-interest portion of KRS 164.289 would be effectively "rendered a nullity" because the president is "the only employee hired by the KCTCS Board of Regents. "
Since the board has the authority under KRS 164.365(1) to control all appointments, it would seem a matter of the board's choice if employees other than the president are appointed by some indirect process, or if salary decisions are made collectively instead of individually. It is not simply OAG 01-8, but also the internal procedure used by KCTCS, that apparently limits the situations in which the conflict-of-interest exception applies in practice. In any event, we must recognize that the primary thrust of KRS 164.289 is to affirm the voting rights of the faculty regents "on all matters," while making only one narrow exception for faculty compensation. OAG 72-267.
There is some plausibility to the argument that the term "faculty compensation" should be read to include collective decisions on compensation as well as individual salary determinations. Nevertheless, the issue has only recently been decided to the contrary by this office, and our opinion was based on a permissible construction of KRS 164.289. As we observed in OAG 78-192, quoting Judge Robert Larson, "The Importance and Value of Attorney General Opinions," 41 OHIO L. REV. 357, 367-68 (1956):
"Attorney General opinions on matters of law, the law's application and construction, while perhaps outside the principle of stare decisis, are entitled to careful consideration and respect by state officers, the legislature, the courts, and the general public? The Attorney General, after careful and responsible study, writes and officially issues the opinion for the guidance of other officers of the state, who are bound to respect and should follow it until it is judicially overruled or changed by legislative action."
A concern for the stability of legal interpretations, and for the reasonable expectations of parties relying on those interpretations made by this office, cautions against a reversal of our recent conclusion in the absence of some material change in the underlying statutes or judicial opinions that compels a different outcome. Since no change in the underlying law has been brought to our attention, we decline to revisit the issue decided in OAG 01-8.
Conclusion
Accordingly, it is our opinion that under KRS 164.289, as well as the bylaws of KCTCS insofar as they parallel the statute, the faculty and staff members of the KCTCS Board of Regents should be permitted to vote upon the compensation of the president and administrative leadership of KCTCS. The only exception would be for a president or administrator who is also a member of the teaching faculty at a community college or technical institution, in which case the faculty regents could lawfully be prevented from voting on the salary of that president or administrator.