Request By:
Hon. Kirk Clarke
Clarke & Clarke
Attorneys at Law
119 Sutton Street
Maysville, Kentucky 41056
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: John F. Zink, Assistant Attorney General
As a member of the Maysville Independent School Board, you have requested an opinion from this office concerning the application of KRS 161.545 with regards to the situation involving Elza Whalen, Jr. Specifically, your question may be stated as:
May a verified statement from a school board superintendent and board members, in office at the time of the taking of an action, be substituted in lieu of the official board minutes in order to meet the verification of leave of absence requirement of KRS 161.545?
In answering this question, it is first important to note that authority to grant to a teacher a leave of absence is given to the school board by KRS 161.770. Under section (1) of this statute, the local board may grant such leave for a period of not more than two (2) consecutive school years for educational or professional purposes.
In the present situation, as described by your letter and that of Mr. Whalen, the minutes of the board reflect nothing at all on the matter; one might say that the minutes are totally barren on the question of the leave of absence taken by Mr. Whalen during the school year of 1957-1958. At this point it school be noted that the minutes of a school board meeting constitute the only legal evidence of what was done by the board. (See OAG 78-346 by Robert Chenoweth; OAG 77-494; Lewis v. Board of Education of Johnson County, Ky. 348 S.W.2d 921 (1961)). While the minutes may be amended to complete it so as to reflect the truth of what occurred (such as to include an actual vote count), deficiencies in the minutes can not be corrected by an amendment which is based upon oral testimony or affidavit of an action by the board not even reflected in the minutes. That such deficiencies can not be corrected by a nunc pro tunc order was seen in the case of Hoskins v. Pitman, Ky. 16 S.W.2d 1052 (1929). In that case, the Court of Appeals stated, "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."
In view of the above, it is the opinion of this office that the school board minutes for the year in question, 1957-1958, may not be amended by simple act of the present board nor by inclusion of an adoption of the verified statement of the former board into the board minutes by the present board. This conclusion brings us to an examination of KRS 161.545, which provides:
(1) Members may make contributions and receive service credit for substitute, part-time or any service other than regular full time teaching as provided in the rules and regulations of the board of trustees. Members placed on leave of absence may make contributions and receive service credit for such leave as provided in rules and regulations adopted by the board of trustees.
(2) Active members who have been granted leaves of absences since July 1941, for reasons of health or to improve their educational qualifications, and did not make contributions to the teachers' retirement system, may make contributions prior to July 1, 1979 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;
. . . (Emphasis added).
In examining this statute, it is necessary to remember that when construing a statute, the primary objective is to determine the legislative intent and purpose as ascertained from the language of the statute. City of Covington v. Sohio Petroleum Co., Ky. 279 S.W.2d 746 (1955). Where a statute is unambiguous, it should be given effect according to its literal meaning. Hilliard v. United States, 310 F.2d 631 (6th Cir. 1962). In the present case, the language of KRS 161.545(2)(a) is clear and unambiguous. It provides that an active member of the KTRS may make contributions for the period which was spent on leave of absence for improvement of educational qualifications; however, in order that a member be so allowed to contribute, the member must verify such a leave of absence with a copy of the board of education minutes wherein permission for such leave of absence was granted. As discussed above, it is the opinion of this office that the statement signed by the former superintendent and board members may not be used to amend the 1957-1958 school board minutes as those minutes are apparently void of any mention of this action. (See OAG 78-346). KRS 161.545(2)(a) specifically requires proof of the granting of such leave to be made only by a copy of the board of education minutes. Therefore, it is the opinion of this office that the verified statement obtained by Mr. Whalen does not meet the requirement set out in KRS 151.545(2)(a) and as such will not enable him to make contributions for the 1957-1958 school year during which he was on leave of absence.