Request By:
Ms. Susie Lou Young, Supervisor
Laurel County Schools
London, Kentucky 40741
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 review an order recently passed by the Laurel County Board of Education relating to retirement of school board employes. The order passed reads as follows:
"Order # 26 - Upon motion by Billy Ray Turner and second by Hargus Collins it is ordered that beginning with school year 1978-79 it will be the policy of the Laurel County Board of Education that all certified teachers who have reached their 65th birthday must sever their employment status with Laurel County Board of Education. It is further ordered that it shall be the policy of the Laurel County Board that all non-certified personnel who have reached their 65th birthday sever their employment status with the Laurel County Board of Education immediately."
You have asked whether this order is binding and automatically enforceable in every case without a hearing be given to those affected by it. You have also questioned whether an individual may be dismissed from his or her job only because of having reached a specified age.
This office over the years has consistently written that a local board of education had authority to adopt a retirement policy, such as the one you have referred to us, under the provisions of KRS 160.290. For example, OAG 72-363, 73-232, 73-456 and 74-454. Our conclusion regarding this matter has been confirmed by a recent opinion of the Kentucky Supreme Court in Belcher v. Gish, S.W.2d, 24 K.L.S. 10 (July 29, 1977), copy attached. The Court notes the pertinent provision of KRS 161.720(4), which reads as follows:
"The term 'continuing service contract' shall mean a contract for the employment of a teacher which shall remain in full force and effect until the teacher resigns or retires or reaches the age of 65, . . . ." KRS 161.720(4).
The Court, discussing this statute which relates only to teachers, went on to say:
"There is no ambiguity in this provision. It is the opinion of this court that it means a continuing service contract ends by operation of law on the sixty-fifth birthday. After age sixty-five the teacher reverts to a non-tenure status, and may be employed at the discretion of the Board of Education upon a limited contract for one year at a time. The cloak of tenure falls from his shoulders, and his reemployment on a yearly basis is dependent on the grace of the board of education. At age seventy the compulsory retirement provision is activated. KRS 161.600. The relation of a teacher and a board of education is contractual. Any legal rights which a teacher has to employment as such must rest on contract. He has no vested right to employment to teach in the absence of contract."
The Court further stated that whether the age policy which had been adopted by the board of education was in the best interest of the school system was for the board to decide and that it was not the function of the court to substitute a policy for that of the board.
Thus, it is now evident that a local board of education may adopt a blanket policy of retirement of all teachers in the school system at age sixty-five. Although the regulation of the Central City Schools in issue in the Belcher case used the language of " all personnel of the Central City School System" (emphasis ours), the opinion of the Court only addresses mandatory retirement of teacher/ certified employes and makes no mention of the so-called "classified or non-certified employe" of a school system such as lunch room workers, janitors, clerks, etc. The order of the Laurel County Board of Education you have asked us to consider specifically applies the "65th birthday" retirement rule to this latter classification of employes just as it does to the certified teachers.
It is our opinion the board policy relating to the noncertified employes is proper and within the scope of the authority vested in a local board of education under KRS 160.290. Noncertified employes of a board of education do not enjoy any application of a statute with similar import of the "continuing service" or tenure law for teachers. The noncertified employes of a local school are employed from year to year under contract. They do not, much like the limited contract teacher, have a vested property interest in another contract upon the expiration of the contract under which they are employed. See
Singleton v. Bd. of Ed. of Harrodsburg, Ky., App., 553 S.W.2d 848, 851 (1977). Under KRS 160.380, the local superintendent of schools has the responsibility to make recommendations to the board for employment of all school board employes. If an individual is not recommended for further employment as a noncertified emplye after a contract has ended, the individual is not entitled to notice, written reasons or why the superintendent rejected making a recommendation for reemployment, or to a hearing. Through the retirement order of the Laurel County Board of Education, it has limited the superintendent to recommending only individuals who have not reached their sixty-fifth birthday for noncertified positions in the school system. We do not believe the board has been unreasonable nor unduly arbitrary in the exercise of its discretion concerning this matter. It is not the function of this office, just as the Kentucky Supreme Court in Belcher, supra, noted it was not the function of the court, to substitute a policy for the board of education.
As a caveat to this opinion, we note that Congress is currently giving considerable attention to proposed legislation to increase the mandatory retirement age. We must, of course, await the passing of the legislation to ascertain the effect, if any, upon employes of local boards of education.