Request By:
Honorable William W. Lawrence
Lawrence & Lawrence
1916 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Assistant Attorney General
You have been retained by one who is now and has been for a number of years a teacher in Kentucky's public schools. The matter about which your legal services have been sought involves your client's making payment into the Kentucky Teachers' Retirement System for a period of time during which she had been given a leave of absence from fulfilling teaching obligations in a school system. Before payments may be made in this regard compliance with the requirements of KRS 161.545 must be fulfilled. This statutory provision in pertinent parts as amended by the 1978 Acts of the General Assembly read as follows:
"(2) Active members who have been granted leaves of absence since July 1941, for reasons of health or to improve their educational qualifications, and did not make contributions to the teachers' retirement system [July 1, 1960, as provided in KRS 161.770, and who did not make contributions to the teachers' retirement system as provided for in regulations of the board of trustees], may make contributions prior to July 1, 1979 [retirement] under the following conditions:
(a) Such leave shall be verified by a copy of the board of education minutes which granted the leave of absence; "
The problem that is presented by you on behalf of your client is that in attempting to comply with the verification requirement stated in KRS 161.545(2)(a), your client has been informed in an affidavit from a former superintendent of schools of the school system involved that while your client most certainly was given a leave of absence for the school years 1942-43, 1945-46, 1946-47 and 1947-48, it was the practice of the local school board during this period of time to not record teacher leaves of absence in minutes of board meetings. Thus, your client's leaves of absence were not recorded and consequently compliance with KRS 161.545(2)(a) is seemingly impossible. You noted in addition to the former superintendent's recollection reflected in the affidavit that your client was on a leave of absence, this status is further reflected in the payroll record as having been on a leave of absence and then having returned to a position as a teacher in the school system. You have asked this office to consider whether the minutes during the 1940s years in question may be now supplemented based upon the affidavit and payroll records.
In your letter you stated you were aware of this office's relatively recent opinion, OAG 78-346, in which it was concluded that under Kentucky case law it is one thing for a school board to amend minutes of the board to speak the truth and something quite different to amend board minutes to speak at all concerning a matter. However, you again reiterated that the practice of the local board of education at the times in question regarding leaves of absence of not including such information in its minutes, in a threshold fashion, precludes your client and others similarly situated from exercising the privilege extended to them by statute if some liberalities are not employed as to the construction of the verification requirements stated in KRS 161.545(2)(a). We note in this regard as an aside that KRS 161.770 became law in 1942. See 1942 Kentucky Acts, Chapter 113, Section 6 (House Bill 206). Thus, the leave of absence statutory provision was relatively new to school boards in the 1940s which undoubtedly played a part in the manner in which leaves of absence were handled in those early years of operation under this law.
This office is of the opinion, as a matter of following long established canons of construction of statutes, that there is not much that can be done with the plain language of KRS 161.545(2)(a). It is mandatorily required that leaves of absence which have been granted to a teacher under KRS 161.770 be verified by minutes of the board of education approving the leave. We do believe, nevertheless, that there is some latitude possible as to the viewing of board of education minutes. By this we mean that now, typically, it could be contemplated that if a leave of absence under KRS 161.770 were granted by a board, there would appear in the minutes an item of business showing this action. A copy of that one item of the board minutes would get a teacher over the statutory hurdle discussed above. However, it is our opinion that the fact a teacher was on unpaid leave of absence under KRS 161.770 may be shown by board minutes even though a specific item cannot be pointed to in the minutes in this regard. We believe if it can be shown through a composite of board minutes, probably extending over several years, and possibly with the aid of payroll records which would have been approved by board action at a meeting, that the employment status of a teacher could have been nothing other than being on a leave of absence under the authority of KRS 161.770, this would serve as compliance with KRS 161.545. We recognize the difficulties likely to arise in trying to verify leaves of absence in this manner, but we are at a loss as to any other suggestion for teachers in such a predicament. We continue to stand firm that board minutes may not be supplemented by nunc pro tunc orders where the minutes are otherwise silent on the matter in issue.