Request By:
Honorable Edward L. Fossett
Attorney
Department of Education
Capital Plaza Tower
Frankfort, Kentucky 40601
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 consider a regulation promulgated by the State Board of Education on February 1, 1977. A letter has been sent to the Governor requesting emergency designation for this regulation. You have raised a question as to the form and legality of the action by the State Board of Education as to Subsection (7) of the regulation since it was contrary to the recommendation of the Superintendent of Public Instruction. Subsection (7) of the regulation reads as follows:
"(7) So much of Section (1) of 702 KAR 3:060 as provides
'In no case shall salaries be paid until after service has been rendered.'
It is hereby rescinded for the fiscal year 1977."
In addition to whether the State Board of Education has the authority to rescind for fiscal year 1977 a portion of a pre-existing regulation without the recommendation of the Superintendent of Public Instruction there have also been two related questions presented to this Office for an official opinion. The two questions are: (1) In view of the rescinded portion of 702 KAR 3:060 which prohibited the payment of salaries until services have been rendered, is a local board of education legally authorized and compelled to pay certificated personnel their regular contracted salaries in advance of services rendered; and (2) In the event a local board of education pays its certificated employees in advance of services performed and the employee(s) fail to render the service for which he/she has been paid, to what degree, if any, would a local superintendent and local board of education be individually and/or collectively liable. We will respond to each of these questions in this opinion.
The form and legality question raised is whether the Superintendent of Public Instruction must recommend a regulation before the State Board of Education may adopt a regulation addressing a particular subject. That is, the very essence of the relationship of the Superintendent of Public Instruction with the State Board of Education concerning the adoption of regulations is in question.
The various statutory sections involving regulations by the State Board of Education must be considered. KRS 156.070, entitled "General Powers and Duties of State Board," provides in pertinent part in Subsection (3) that "The State Board of Education may, on the recommendation and with the advice of the Superintendent of Public Instruction, prescribe, . . . regulations, . . . as it deems necessary for the efficient management, control and operation of the schools under its jurisdiction." Under the heading "Duties of Superintendent" is KRS 156.160 entitled "Adoption of Rules and Regulations by State Board." KRS 156.160(10) states:
"Upon recommendation of the superintendent of public instruction, the state board of education shall adopt rules and regulations relating to:
* * *
(10) The preparation of budgets and salary schedules for the several school districts under the management and control of the state board of education; "
Also, since the regulation section in question relates to the public school foundation program fund, KRS 157.310 to 157.440, the definition of "Kentucky Administrative Regulations of the State Board of Education" is applicable and is set out in KRS 157.320(10) as follows:
"As used in KRS 157.310 to 157.440, unless the context otherwise requires:
* * *
(10) 'Kentucky administrative regulations of the state board of education' means those regulations which the state board of education may adopt upon the recommendation and with the advice of the superintendent of public instruction. The superintendent of public instruction shall recommend for adoption of the state board of education such rules and regulations as he deems necessary for carrying out the purposes of KRS 157.310 to 157.440;"
It is obvious from the sections of school law quoted above that the Superintendent of Public Instruction is meant to have an integral part in the formulation and adoption of regulations by the State Board of Education but we do not interpret the function of the State Board of Education as being only to approve regulations prepared by the Superintendent of Public Instruction as once was the case. We note that prior to a 1974 amendment and since the 1934 School Code, KRS 156.160 read: "The Superintendent of Public Instruction shall prepare or cause to be prepared and submit for approval and adoption [regulations] by the State Board of Education. " The language of this section now reads: "Upon recommendation of the Superintendent of Public Instruction, the State Board of Education shall adopt rules and regulations relating to." See KRS 156.160, supra. This statutory change reflects a change in the responsibility of the Superintendent of Public Instruction concerning education regulations. The Superintendent of Public Instruction now does not "prepare for approval" regulations but is to recommend that regulations be adopted by the State Board of Education in given areas. Certainly a part of that recommendation process would be to prepare suggested regulations in various areas of concern and to give advice to the State Board on the adoption of regulations. See KRS 157.320(10), supra. We are of the opinion, however, that the State Board of Education, charged with the responsibility of management and control of the common schools, may exercise reasonable discretion in the adoption of a regulation. This may mean that the recommendation by the Superintendent of Public Instruction will be modified or advice not fully followed, and this is exactly the situation that has developed concerning the rescinding for the 1977 fiscal year of the one sentence from an existing State Board of Education regulation as proposed by Subsection (7) of the regulation in question. We are of the opinion the law, as a condition precedent to the adoption of regulations, requires the State Board of Education to receive recommendation and advice from the Superintendent of Public Instruction concerning regulations. What the State Board of Education does with the recommendation and advice is left to its reasonable discretion.
Thus, it is the conclusion of this office that there is nothing unlawful about the State Board of Education having adopted Subsection (7) of the regulation in question against the recommendation and advice of the Superintendent of Public Instruction.
Furthermore, concerning Subsection (7), it is our opinion that the removal for fiscal year 1977 of this one sentence does no more than leave to each local board of education the responsibility to decide through an established board policy whether payment of salary will be made to a teacher before services contracted for have in fact been performed in any school month. See KRS 160.290. Each local board of education has it left to its discretion whether or not to adopt a policy to pay certificated personnel their regular contracted salary in advance of services rendered.
With this newly given freedom it is imperative that we address the possible legal ramifications of a local board of education adopting a policy of paying its teachers before they have performed services. We believe the regulation sentence in question, "In no case shall salaries be paid until service has been rendered," is a reflection of what might be called "general legal principles," "good business," or "plain common sense." As a usual rule, where a contract to render services is silent as to the time of payment, payment is due when the services have been rendered. 17 Am.Jur.2d, Contracts, § 338. It is recognized that the situation our schools and their teachers are in because of the severe winter weather and the teachers are in because of the severe winter weather and the accompanying fuel supply crisis is not a "usual" situation so that the unusual under these circumstances might be appropriate. However, we believe the "unusual" of paying teachers under contract for services yet to be performed may present a legitimate possibility of personal liability to the local superintendent and local board of education adopting such a policy. Under the presented circumstances if a teacher on contract to teach for the school term, whatever number of days the school term turns out to be, is paid for services yet to be performed, fulfills the obligation of the contract and does in fact teach each day of the remainder of the school term, then there will be no possible liability problem at all. However, the problem which could develop is when a teacher is paid for services yet to be performed, subsequently becomes disabled from performing the services, dies, or voluntarily absconds so as to be unable to perform the services. In any one of these situations the local board of education must employ an individual to perform the services already paid for. Naturally the individual so hired under these circumstances will be entitled to be paid for rendering the services and when so paid the local board of education will have paid twice for the same services -- once in advance and once when the services are delivered. Little argument can be made with the proposition that public education tax dollars may not legally be spent to pay for the same services twice. A cause of action would, we believe, be presentable against the local board of education and the local superintendent on the claim that through their act of paying for services in advance of the services being rendered, the "double payment" situation had been created to which they should stand liable for the monetary amount in question. While no case directly in point has been found, the case of Smith v. Beverly, Ky., 236 S.W.2d 914 (1951), is pursuasive in the legal principle involved. In that case a local superintendent had recommended an individual for a position as principal but the local board of education failed to make the appointment and instead hired a substitute principal. The Kentucky Court of Appeals, in a suit against the board members by the recommendee for the amount he would have received had he been appointed to the position as principal as recommended, stated: "Damages are not allowable against a board of education in its official capacity because the money appropriated for the payment of the salaries of the position in dispute has been expended, and public funds may not twice be drawn upon for services once received." The Court found the board members liable as individuals, jointly and severally, for the amount of the principal's salary. See also Cooksey v. Board of Education of Fairview Independent School District, Ky., 316 S.W.2d 70 (1958).
If a local superintendent and board of education wish to adopt a policy of paying teachers before service has been rendered, it is our advice that the service of local legal counsel be retained to assist in the carrying out of the policy in a manner affording the greatest amount of legal protection to the school officers.
We also believe it is necessary to make a few comments concerning Subsection (6) of the proposed regulation, which reads as follows:
"(6) In addition to the statutory method of calculating average daily attendance, attendance for each make-up day shall be computed upon the per cent of attendance for the first two months of the current school year in order to assure that no district loses funds as a result of the emergency. "
It cannot be questioned that the state Board of Education is without authority to adopt a regulation that is inconsistent with state law or not authorized by state law. The procedure for determining the amount distributable to each school district from the foundation program fund is spelled out at KRS 157.400. As concerns average daily attendance in this process, KRS 157.400 (2)(a) and (b) must be considered:
"(2) (a) If it shall be determined in subsection (1) of this section that the amount of money distributable to a school district for the school year 1976-77 shall be less than $327 per pupil in average daily attendance and, beginning in the 1977-78 school year, that the amount of money distributable to a school district shall be less than $327 per pupil in average daily attendance, then the apportionment for that district shall be increased to $327 per pupil in average daily attendance in 1976-77 and beginning in the 1977-78 school year the apportionment for that district shall be increased to $327 per pupil in average daily attendance; provided, however, if a district fails to provide the total potential classroom units under subsections (2), (7), (8) and (9) of KRS 157.360 and at least as many classroom units under subsections (5) and (6) of KRS 157.360 as were provided in each of these subsections in 1955-56, any increase in the apportionment called for in this subsection shall be reduced to the extent that the district fails to provide the classroom units.
(b) The average daily attendance referred to in this subsection shall be the prior year average daily attendance of the district adjusted proportionally for any increase in classroom units allotted the district under provisions of subsection (4) of KRS 157.360."
The definition of "average daily attendance" as used in the foundation program legislation is found at KRS 157.320(1):
"As used in KRS 157.310 to 157.440, unless the context otherwise requires:
(1) 'Average daily attendance' means the aggregate days attended by pupils in a public school, divided by the actual number of days the school is in session for the year;"
Thus, it is our opinion that the State Board of Education, in view of the above statutory references, may not by administrative regulation change the method of calculating average daily attendance used to compute the amount of foundation program money due each school district; but the proposed regulation as written does not substitute a new method of calculating average daily attendance for the statutory method. It requires, as we read it, each school district to calculate average daily attendance both ways. The language of the regulation says "in addition to the statutory method of calculating average daily attendance. " How the State Board of Education will in fact "assure that no district loses funds as a result of the emergency [missing school due to inclement weather and fuel supply shortages]" must further be grappled with and worked out.