Request By:
Honorable John G. Prather
Attorney at Law
P. O. Box 106
Somerset, Kentucky 42501
Opinion
Opinion By: Robert F. Stephens, Attorney General; Robert L. Chenoweth, Assistant Attorney General
As the attorney for the Somerset Independent School District you stated you have been directed to request an opinion relative to KRS 161.720(9), KRS 161.760 and KRS 161.765. The fact situation against which these statutes are to be considered was stated by you as follows:
A person employed in the school system as an assistant principal for the 1974-75 school year applied to replace the retiring principal in the Hopkins Elementary School. He was unsuccessful in this application. The applicant was later assigned as the guidance counselor for the Middle School for the 1975-76 school year. Due to the date upon which the assignment was made the gentleman was paid the same total pay for the 1975-76 school year as he had been paid for the previous year. Due to an apparent oversight, this remuneration continued through the 1976-77 school year.
Prior to May 15, 1977, the man was furnished with a notice pursuant to KRS 161.760, that he would not be paid the incremental pay of $50.00 per teacher (which he had received as assistant principal) while serving as guidance counselor during the 1977-78 school year.
You further informed us the certified employee in question claims that he is entitled to continue receiving the assistant principal increment unless the procedures under KRS 161.765, the so-called "Fair Demotion Law, " are followed. The certified employee claims that the transfer from an assistant principal position to a guidance counselor in the school system amounts to a demotion as defined under KRS 161.720(9). Your specific question is whether the withdrawal of the pay increment amounts to a demotion as defined under KRS 161.720(9).
The application of KRS 161.765, the Fair Demotion Law, to various factual situations has not been without problems. This statute, passed by the 1974 General Assembly, established procedures to be used for demotion of administrative personnel. The definitions to be used in the application of this statute are found in KRS 161.720(7), (8) and (9). What is meant by each of these respective definitions has been nearly a constant problem since their enactment. Your opinion request asks us to construe the definition of "demote" or "demotion" found at KRS 161.720(9). It is our opinion under the facts presented the transfer from assistant principal to guidance counselor with an accompanying withdrawal of the pay increment provided for the position of assistant principal does not amount to a demotion under this law.
Under the definition of administrator found at KRS 161.720 (8), the position in a school system of assistant principal and of guidance counselor are each specifically named as administrative for the purpose of KRS 161.765. Thus, to hold that a transfer between clearly administrative positions is a demotion would require "grounds" called for in KRS 161.765. A providing of "grounds" as contemplated by KRS 161.765 is inconsistent with a mere transfer of positions from one administrative position to another in the school system. The protection of the Fair Demotion Law was not to hamstring the superintendent and board of education in the administration of schools in the district but to protect a certified employee of a school system who had attained and maintained administrative status in a school system for three years or more. Just as the teacher tenure law does not entitle a teacher to a particular position or school in the system [KRS 161.760(3)] neither does the Fair Demotion Law entitle a certified school employee with administrative status to a particular administrative position. While we concluded in OAG 77-157, copy attached, that the three years required before the protection of KRS 161.765 vested, meant three successive years in the same school system unless broken by intervening leave of absence under KRS 161.770, we specifically concluded that the three years need not be in the same administrative position. We are of the opinion that the language of the statute [KRS 161.720(9)] regarding lateral transfer was to insure that so long as the transfer was to a position of similar rank and pay, such as is evident under the facts presented herein, the fact that there exists minor alterations in pay increments in accordance with the school system's salary schedule for administrative positions will not be deemed a demotion. Compare OAG 77-328.