Request By:
Mr. James P. Melton
Executive Director
Kentucky School Boards Association
67 Fountain Place
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 render an advisory opinion relative to the following facts:
"A teacher employed by a board of education in 1960 requested a leave of absence in 1965 and was under the impression this leave was granted. Board minutes failed to show that such leave was granted; however, board members holding office at that time indicate that the leave was granted and that the minutes are in error."
You have asked whether the current board of education, with notarized statements from the 1965 board members and the secretary of the board at that time, could legally correct this error. You noted this question is presented due to KRS 161.545 which states that a teacher on leave of absence may pay into the teacher retirement program provided, ". . . that such leave should be verified by a copy of the board minutes that granted the leave of absence. "
The alteration of school board minutes was the subject of a relatively recent opinion of this office, OAG 77-494, copy attached. In that opinion we stated in part as follows:
"A board of education is a public corporation. KRS 160.160. All official proceedings of a board of education are required to be recorded by the secretary to the board in a record book provided for that purpose. KRS 160.270(1). The case law is clear that a board of education speaks only through its record as to what was done when acting as a body at a meeting of the board. Lone Jack Graded School Dist. v. Hendrickson, 304 Ky., 317, 200 S.W.2d 736 (1947)."
The question addressed in that opinion was whether a board member can change his or her vote on a motion voted on at a previous meeting before approval of the minutes of that meeting is sought. We concluded that "the minutes may only be changed in this regard if the minutes inaccurately reflect the vote actually made by a board member. "
Your question concerning school board minutes offers a situation quite unlike that usually presented to this office for consideration in that in issue is not whether the board minutes accurately reflect action taken on a matter before the board, but that the minutes reflect nothing at all on a matter. That is, the board minutes do not show that a request was made for a leave of absence, let alone whether the board granted the leave. The minutes are totally barren on the matter.
In responding to your question we believe it will be helpful to first look again at the law regarding making an attack on the veracity of school board minutes. As noted in OAG 77-494, supra, the minutes of a school board meeting constitute the only legal evidence of all that was done by the board and that nothing more was done. Also, see Lewis v. Board of Education of Johnson County, Ky., 348 S.W.2d 921 (1961). However, the minutes are not conclusive against a direct attack for fraud or mistake. See Creech v. Board of Trustees, Ky., 102 S.W. 804, 806 (1907); City of Monticello v. Ragan, 258 Ky. 223, 79 S.W.2d 720, 721 (1935), and City of Hazard v. Duff, 287 Ky. 427, 154 S.W.2d 28, 30 (1941).
The usual claim is that through inadvertence the record has been defectively made. The minutes may be amended to complete it in order to reflect the truth. See Commonwealth v. Combs, Ky., 426 S.W.2d 461, 463 (1968), a school board member ouster case, which cites 5 McQuillan, Municipal Corporations, § 14.10, pp. 30-34; Ward v. Lester, 235 Ky. 595, 31 S.W.2d 924; Janutola & Comadori Construction Co. v. Taulbee, 229 Ky. 213, 16 S.W.2d 1026. The amendment is by a nunc pro tunc (now for then) entry so long as there is a matter which authorizes such amendment. McQuillan, supra, at 32. By this it is meant that, for example, if the minutes reflect that a matter was before the board but they do not show the yeas and nays of the vote on the matter, an amendment may be made to the minutes to show the vote was taken. However, under the present facts there is nothing in the minutes to amend. There is an absence of anything in the board minutes of 1965 upon which a nunc pro tunc order could be based. Deficiencies in the minutes of the board's proceedings cannot be corrected by a nunc pro tunc order which is based upon oral testimony or even upon affidavits. Hoskins v. Pitman, 229 Ky. 260, 16 S.W.2d 1052 (1929). "The record evidence upon which it is sought to base the nunc pro tunc order must be such as to furnish itself evidence that the particular proceeding in fact took place." Id., at 1052. The facts of the Hoskins case, in effect, are similar to the facts here presented. One Mr. Pitman alleged that at a meeting of the board of council of the City of Pineville by resolution, he had been employed to audit certain books of the city but through error and oversight no minutes reflecting the employment had ever been made in the records of the council. Mr. Pitman brought suit to require the board of council to enter of record upon its books a nunc pro tunc minute of the employment. He offered oral testimony and proof aliunde (from another source; from outside) to support his allegation. The Kentucky Court of Appeals denied Mr. Pitman's attempt to correct the deficiency, declaring that there was absolutely nothing in the records of the council of the City of Pineville upon which to base the nunc pro tunc order. The Court quoted from Lancaster Electric Light Co. v. Taylor, 168 Ky. 179, 181 S.W. 967 (1918), saying:
"'To say that records may be corrected or supplemented, added to or taken from, when the only basis of such action is uncertain human recollection, would be to destroy their value as record evidence, and would lessen, if not destroy, the faith of the public in the verity and permanence of public records.'" 16 S.W.2d at 1052.
Under the circumstances herein presented, there is nothing at all upon which to base an amendment of the 1965 school board minutes. In view of the case law noted above, it is one thing for a municipal corporation or school board to amend its minutes to speak the truth and quite something else to amend the minutes to speak at all concerning a matter. Therefore, it is our conclusion that the 1965 school board minutes may not be amended to reflect a leave of absence was given to the teacher when there is no entry in the minutes that the matter was ever before the board. In so concluding, it is not our intention to cast doubt about anything nor to disparage the word of anyone. We could simply not conclude otherwise as a matter of case law in Kentucky.