Request By:
Mr. Bill Brown, Superintendent
McCracken County Public Schools
Route 6, Bleich Road
Paducah, Kentucky 42001
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
On behalf of the McCracken County Board of Education you have requested an opinion from the Office of the Attorney General concerning the proper procedures to follow in eliminating certain existing units in vocational and/or special education. You have asked the following questions which we quote and number.
1. The proper procedures to follow when units are to be eliminated. This would include notification of personnel involved, both tenured and non-tenured.
2. Procedures to follow in the reassignment of those people that would be retained for the program. It will be necessary to transfer some teachers from the school they are assigned to this year to another school for next year.
3. The procedure to follow in the reassignment of tenured teachers that will not be included in the vocational or special education program, but will be reassigned to another area in which they are certified.
4. We also need to know proper procedures to follow in the event a person is certified only in the particular area where the unit is being eliminated, but has tenure and is not certified in any other area.
5. We also need to know if it would be more feasible to include the reasons for termination in the letter advising them of their termination.
6. We request your opinion on whether or not non-tenured teachers would have to be granted a hearing by the total board and the proper procedures in conducting a hearing.
In response to your first question, it is to be noted that the elimination of classroom units could be prompted by a decrease in enrollment of pupils or a reduction in available funds to support certain classroom units, or both. Our school laws appear to address the first situation but not the latter.
KRS 161.800 provides as follows:
"When by reason of decreased enrollment of pupils, or by reason of suspension of schools or territorial changes affecting the district, a board of education decides that it will be necessary to reduce the number of teachers, it shall have full authority to make reasonable reduction. But, in making such reduction, the board shall proceed to suspend contracts in accordance with the recommendation of the superintendent of schools who shall, within each teaching field affected, give preference to teachers on continuing contracts and to teachers who have greater seniority. Teachers whose continuing contracts are suspended shall have the right of restoration in continuing service status in the order of seniority of service in the district if and when teaching positions become vacant or are created for which any of such teachers are or become qualified."
In OAG 73-383, copy attached, we stated this section of our school laws was not applicable in situations where the reduction of teaching personnel is necessary because of a shortage of funds.
In the situation where a school district is forced to reduce its teaching personnel due to a shortage of funds, it must be kept in mind that tenured teachers must be employed before any nontenured teachers are employed or re-employed. We believe without reservation that budgeting of funds and economic conservation can constitute substantial justification for nonrenewal of a limited contract or employment in a school system. The superintendent of schools, under KRS 160.380, must recommend to the school board those limited contract teachers who the superintendent desires the board not to renew their contracts due to the reduction of funds. Assuming the board approves of this recommendation not to renew, the teacher must receive notice by April 30, as required in KRS 161.750.
In answering your first question we have assumed that any tenured teachers teaching in the units to be eliminated can be absorbed in a teaching area for which they are qualified and in which there would be limited contract teachers who could have their contracts recommended for nonrenewal to make room for the tenured contract teachers who taught in the units eliminated. We will discuss below the possible problem that could occur if a tenured teacher is not qualified to teach in any other area or field than the one in which units are eliminated.
As for the reassignment procedures asked about in your second and third questions, we refer you to KRS 161.760. Assignment, reassignment and transfers upon recommendation by the superintendent under KRS 160.380 should be made for all certified personnel in a school system by July 1, with reassignment possible not later than July 15, barring the few noted exceptions to this provision which, most important in the context of this opinion, is to "assign personnel according to their major or minor fields of training. "
These assignment procedures spelled out in this statute would be applicable to those teachers being given new assignments due to the elimination of certain units. If per chance a teacher to be reassigned has held a position in the school system calling for extra service or supervisory duties and responsibilities and there exists a need to reduce this responsibility with a corresponding reduction in salary, please note that a recommendation to this end by the superintendent must be made to the board and approved. Upon approval by the board, notification of this action must be received by the affected teacher by May 15, and the notification must contain the "specific reason or reasons for such reduction. . . ." KRS 161.760(2).
Your fourth question seems to be almost unresolvable or at best resolvable only with extreme consequences. If the reduction in teacher personnel is due to reduction in funds, as we noted above, KRS 161.800 is not applicable. We know of no other statutory provision which would authorize the "suspension" of a continuing contract of a teacher. Note that KRS 161.720(4) defines the term "continuing service contract" as "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 sixty-five (65), or until it is terminated or suspended as provided in KRS 161.790 and 161.800." While you refer to "certification," we believe the real problem is one of being qualified to teach in major or minor fields of study. That is, under KRS 161.020, et seq. an individual can receive a standard high school certificate which is valid for teaching in grades 7 through 12. See 704 KAR 20:065(3). Theoretically, an individual with such a certificate could be assigned to teach in any such field in grades 7 through 12. However, there is an obvious necessity for a teacher to teach in their major or minor field of training and KRS 161.760 recognizes this for assignment purposes, as noted above. It certainly is not in the welfare of the school system, and more importantly the children, to have a teacher teaching out of their field of training; and in order to eliminate such practices in a school system the State Board for Elementary and Secondary Education requires a school system, in order to be accredited with a comprehensive or standard program, to have all of its regular classroom teachers "teach in [their] major or minor field or area of concentration." Standards for Accrediting Kentucky Schools, page 26; 704 KAR 10:022. To be accredited with just a basic program some flexibility is possible concerning assignment of teachers in major or minor fields. Id., page 27.
Thus, the problem you present is where a tenured teacher has only a major field of training and there exists no unit in that field to which the teacher may be assigned. Yet, the teacher is entitled to a position in the school system. The superintendent and the board, it would seem, are faced with either placing the teacher in a field for which the teacher is not trained and suffer the accreditation consequences or take such steps as are necessary to assist the teacher in becoming qualified and trained in an additional field in which a position is available. This could be facilitated by permitting the teacher to go on an educational leave of absence, under KRS 161.770, for which the board is authorized to pay any or all of the salary of the teacher during the educational leave period.
We understand you in question No. 5 to have reference to nonrenewal of a teaching contract under KRS 161.750. Notice of nonrenewal is required to be received by the teacher by April 30. If the teacher so requests of the board, the board of education must provide "a written statement containing the specific, detailed and complete statement of grounds upon which the nonrenewal of contract is based." We deem it to be a matter of administrative discretion as to whether in the notice of nonrenewal the specific, detailed and complete grounds for nonrenewal will be included or whether such grounds only will be provided after receipt of a request by the teacher. Note, however, in subsection (3) of KRS 161.750 the failure to provide the written statement of grounds required by subsection (2) of this statutory provision can be the basis for the teacher receiving a contract for the next school year. In that this statement of grounds once provided to the teacher does not serve as a catalyst for any additional personnel action, it would seem administratively more convenient to state the grounds upon which the nonrenewal was based in the letter of notification of nonrenewal.
In your last question you ask whether a nontenured teacher would be entitled to a hearing upon notification of nonrenewal of their teaching contract. No hearing is required to be given to limited contract teachers who have not had their contract renewed except under very limited circumstances. See Bowlin v. Thomas, Ky. App., 548 S.W.2d 515 (1977), copy attached, for a discussion of this matter.