Request By:
Mr. Reathel Goff, Superintendent
Ohio County Schools
Hartford, Kentucky 42347
Opinion
Opinion By: Robert F. Stephens, Attorney General; Robert L. Chenoweth, Assistant Attorney General
You have asked the Office of the Attorney General for an opinion relative to the "Fair Demotion Law," KRS 161.765. You have specifically asked whether a certified employe who has held the position of elementary principal more than three years may be assigned to a teaching position in the 7th and 8th grade for the next school year if the salary to be received is the same (plus any increment received by all certified employes) as in the 1976-77 school year. You have asked if such an assignment is a demotion.
To answer your questions, consideration must be given to KRS 161.765 and to the definitions of the terms "administrator" and "demote" or "demotion" as used in KRS 161.720(8) and (9) respectively. KRS 161.765, as applicable to the administrator who has completed three years of administrative service, provides in subsection (2) that such an administrator may not be demoted unless and until certain enumerated due process procedures have been complied with. See OAG 77-157, copy attached, where this office concluded that the three years spoken of in this statute 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. It is accepted, for the purposes of this opinion, that the three years served as principal in the present situation complies with this conclusion. Looking at KRS 161.720(8), the term "administrator" for the purpose of KRS 161.765 definitely includes the position of principal.
The term "demotion" is defined in KRS 161.720(9) as follows:
"The terms 'demote' or 'demotion' for the purpose of KRS 161.765 shall mean a reduction in rank from one 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. "
Emphasis in this definition is clearly given to a reduction of salary upon a change in positions. It is not to be considered a demotion when the position change is only a lateral transfer to a position of similar rank and pay.
In OAG 75-368, copy attached, we wrote that when a guidance counselor position was eliminated because of the loss of federal funds and the certified employe who had held this position was reassigned to a teaching position with no reduction in salary, there had not occurred a "demotion" within the statutory definition. This office stated the reassignment there in question was a lateral transfer "since the teacher will suffer no reduction in rank on the school district salary schedule. " OAG 75-368, p. 2.
We are now of the conclusion that the opinion rendered in OAG 75-368 is incorrect in several respects and it is hereby withdrawn. A demotion as defined in the statute is not to include "lateral transfers to positions of similar rank and pay." While the rank and pay of a classroom teacher and a guidance counselor or other administrator may be similar, an administrative position in a school system and a position as classroom teacher are not on the same plateau such as to reasonably contemplate a "lateral" shifting of responsibilities attendant to the respective positions. We believe that a lateral transfer would be one between the administrative positions named in KRS 161.720(8) between positions, irrespective of title, which require administrative responsibilities. An administrator, as defined in KRS 161.720(8), is a certified employe "who devotes the majority of his employed time to service" in a position named in the statute or a position having responsibilities and duties usually associated with the word "administrator, " that is, policy making, evaluating, supervising or recommending functions. The position of classroom teacher is not an administrative one.
In view of the above, it is our opinion assigning an administrator with at least three years' administrative service in the same school system to a teaching position or any position not having administrative responsibilities would be a demotion, irrespective of the similarity of salary to be received, and the procedures set forth in KRS 161.765(2) would have to be complied with.