Request By:
Honorable Herbert B. Sparks
Wilson, Herbert, Garmon & Sparks
Attorneys at Law
P.O. Box 468
Edmonton, Kentucky 42129
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
You have asked the Office of the Attorney General to give an opinion regarding the statute providing procedures for demotion of administrative personnel in our schools, KRS 161.765. The factual background to the questions presented in your letter was that a certified employee had first become employed in a local school district on July 1, 1975, and is now completing the second year in that school system under a teaching contract serving as principal. You noted that the certified employee has in excess of three years of administrative experience when employment in other districts and the one in which presently employed are combined. You ask whether this certified employee may be demoted without a hearing. You further ask what is the legal standard for a demotion; and if a certified employee is not entitled to a hearing under the provisions of KRS 161.765, what legal standard must be used to judge if the demotion is just, fair and proper.
KRS 161.765 is popularly named "the Fair Demotion Law. " This section of the school laws reads in part as follows:
"(1) A local board of education may demote an administrator who has not completed three years of administrative service, not including leave granted under KRS 161.770, by approving the superintendent's recommendation for demotion and by complying with the requirements of KRS 161.760.
(2) An administrator who has completed three years of administrative service, not including leave granted under KRS 161.770, cannot be demoted unless and until the following procedures have been complied with:"
KRS 161.720(8) and (9) defines the terms "administrator" and "demote" or "demotion, " respectively, as follows:
"(8) The term 'administrator' for the purpose of KRS 161.765 shall mean a certified employe, below the rank of superintendent, who devotes the majority of his employed time to service as a principal, assistant principal, supervisor, coordinator, director, assistant director, administrative assistant, finance officer, pupil personnel worker, guidance counselor, or school business administrator, or who holds a position in which he evaluates or supervises board employes or recommends personnel for employment or discharge. The term 'administrator' shall also include those assistant, associate or deputy superintendent who do not fall within the definition of 'superintendent' as set forth in KRS 161.720(7).
(9) The terms 'demote' or 'demotion' for the purpose of KRS 161.765 shall mean a reduction in rank from one position on the school district salary schedule to a different position on that schedule for which a lower salary is paid. The terms shall not include lateral transfers to positions of similar rank and pay or minor alterations in pay increments required by the salary schedule. "
The Fair Demotion Law is of relatively recent origin, having become law after enactment of Senate Bill 250 by the 1974 General Assembly. Since that time this office has only on several occasions been requested to render an advisory opinion regarding the application of this law. The only opinion relevant to a consideration of the questions you have presented is OAG 75-413, copy attached. That opinion was written against the factual background of a certified employee who had completed his one year as an assistant principal and who for ten years just prior to the year as assistant principal had not been employed in education at all. Prior to the ten-year period away from education the certified employee had been a teacher on tenure and had at least three years experience as an administrator. This office was asked whether the Fair Demotion Law applied to the assistant principal under those circumstances and we responded affirmatively.
Your request has necessarily caused this office to reconsider KRS 161.765 and OAG 75-413. It is now the opinion of this office that the conclusion reached in OAG 75-413 is not supported by the language of the statute. Therefore, the opinion of this office numbered 75-413 is hereby withdrawn.
A local board of education may or may not demote an administrator, depending upon whether the individual certified employee has completed three years of administrative service, not including leave granted under KRS 161.770. KRS 161.770 is the enabling statute authorizing local school boards to grant leave of absence without pay permissively for educational or professional purposes and mandatorily where illness, maternity or other disability is the reason for the request, the period of the leave of absence for no more than two consecutive school years. We have held that the term "leave of absence" connotes continuity of employment status. See OAG 73-486, copy attached. We are of the opinion that the specific reference to KRS 161.770 in KRS 161.765 was for the purpose of recognizing continuity of administrative service status in a particular school system.
That is, for example, if a certified employee served a school year as a principal and the following two years was on leave from the school system pursuant to KRS 161.770 and then subsequently came back to that school system and served as principal or in any other administrative position for two years, the protection of KRS 161.765 would exist for that individual. We believe KRS 161.765 countenances a continuity in a particular school system as an administrator for three years. The three years must be successive, unless broken by an intervening leave of absence under KRS 161.770, and in the same school system although not necessarily in the same administrative position. Any other interpretation of KRS 161.765 ignores the importance and practicalities of the reference to KRS 161.770 in that statute.
Therefore, in view of the above, we must conclude that the certified employee who has served only two years as a principal in the school system where presently employed is not entitled to a hearing if demoted by the board after a recommendation for same by the superintendent of schools. Administrative service in another school system is of no consequence whatsoever as concerns the provisions of KRS 161.765.
As for your other question, we believe the definition of "demotion" found in KRS 161.720, noted supra, must serve as the legal standard for a demotion. If a certified employee has not served as an administrator for three successive years, not including a leave of absence under KRS 161.770, in a particular system, the superintendent may recommend to the local board that there should be a reduction of responsibility with a corresponding reduction in salary as provided for in KRS 161.760. As required by KRS 161.765(1), if the board approves the superintendent's recommendation, the certified employee with less than three years administrative service is entitled to written notification setting forth the specific reason or reasons for the reduction by May 15. KRS 161.760(2).