Request By:
Honorable Joseph M. Whittle
Attorney at Law
22 Public Square
Leitchfield, Kentucky 42754
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
As the attorney for the Grayson County School Board you have requested an opinion from the Office of the Attorney General. As background to your request you have stated as follows:
"Due to budgetary reasons, the Grayson County Board of Education found it necessary to reduce the number of administrative personnel. In order to accomplish this reduction, certain school counsellors were demoted to the rank of classroom teachers. This reduction did not result in the termination of contracts of employment. No issue exists as to either the specific personnel who were initially demoted or compliance with the procedural due process required for demotion.
Thereafter, the availability of funds has made it possible for the Board of Education to reinstate some of the demoted personnel to the position of counsellor. All of the individuals who were demoted have tenure as teachers and are employed on continuing contract. However, some of these employees have a greater total seniority of service in the system, while others have less total service but have greater seniority in the field of counselling. "
The two questions you have asked this Office to consider are as follows:
"1. Is the Board of Education required to use the method prescribed by KRS 161.800 in reinstating the demoted counsellors or is the method so prescribed merely optional?
2. If the method for restoration prescribed by KRS 161.800 is used are the demoted counsellors to be reinstated based upon greater seniority in the field of counselling or based upon greater total seniority of service in the system?"
It is our opinion KRS 161.800 is not applicable to your situation but may be used as guidance in your deliberations on a like kind of matter.
This Office reiterated in OAG 78-266, copy attached, our conclusion in a prior opinion, OAG 73-383, copy attached, that KRS 161.800 is not applicable in situations where the reduction of teaching personnel is necessary because of a shortage of funds. Moreover, in your situation you did not suspend the contract of any teacher but found it necessary to change the certified employee status of employment in the school system. Nevertheless, as to your type of situation, like that discussed in OAG 77-282, copy attached, we believe in the absence of statute giving direct guidance, it is advisable and should be helpful to borrow from the provisions of KRS 161.800.
It is our understanding that the "field affected" by the anticipated budgetary crunch was that of the administrative position of counseling. The primary consideration the school system had to have was separating the counselors who had three or more years of administrative service in the school system who were thus shrouded with the protection of the administrative fair demotion law, KRS 161.765, and those counselors not having three years of administrative service. The superintendent and school board would have no legal alternative but to demote from a counselor position first those individuals not having three years of administrative status. If there then existed a need to demote some of the counselors protected by the provisions of KRS 161.765, the superintendent and board would need to demote in a manner such as to give preference to those individuals who have greater seniority within the established administrative fields. See OAG 77-282, supra, at page 4. See also Hartman v. Board of Education of Jefferson County, Ky. App., 562 S.W.2d 674 (1978), copy attached.
The second question you have presented to us concerns the restoration regarding those teachers involved in the above discussed process. Certainly as between two counselors who had been demoted to classroom teachers, one having been under the provisons of KRS 161.765 (at least three years of administrative service in the system) and the other not, we believe the former counselor with the greatest seniority as an administrator in the system would have to be restored to an administrative position if one became vacant or was created for which the individual was qualified through certification. If the consideration for restoration was between or among former administrators who were not under the provisions of KRS 161.765, priority should be given first to seniority as administrators and, secondly, if necessary, to seniority in the school district.