Request By:
Mr. Billy F. Hunt
Deputy Executive Secretary
Kentucky Teachers' Retirement System
216 West Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; John F. Zink, Assistant Attorney General
Re: Opinion Request KRS 161.545(2)(a)
As Deputy Executive Secretary of the Kentucky Teachers' Retirement System, you have requested an opinion of this office regarding interpretation of KRS 161.545(2)(a) as it deals with the requirement that members of the KTRS who were on permitted leave of absence, must verify such leave by supplying a copy of the local board of education minutes in which the leave of absence was granted. In answering your question, it is necessary to examine the language of KRS 161.545(2)(a):
(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, 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).
Specifically, the problem you have posed to this office is whether a KTRS member, Ms. Linda Clark, who did not officially request a maternity leave, and who did not supply our office with a verified copy of the board minutes granting such leave of absence, may make such contributions.
Recently, this office has had the opportunity to address the question of the amendment of board of education minutes when they do not include any reference to the action sought to be verified. It is clear that a board of education is a public corporation. KRS 160.160. As such, all official proceedings of a board of education are to be recorded by the secretary of the board in a record book provided for that purpose. KRS 160.270(1). The case law is clear on the fact 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. (See
Lone Jack Graded School District v. Henderickson, Ky., 200 S.W.2d 736 (1947)).
In OAG 77-494, this office concluded that "the minutes may only be changed . . . if the minutes inaccurately reflect the vote actually made by a board member." In the present case, the board minutes do not show that a request was made for a leave of absence, let alone whether the board granted the leave. In short, the board minutes are totally barren on the matter. As was pointed out in 78-796, the board minutes of their meeting constitute the only legal evidence of what was done by the board. (See
Lewis v. Board of Education of Johnson County, Ky., 348 S.W.2d 921 (1961)). While 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.
In
Hoskins v. Pitman, Ky., 16 S.W.2d 1052 (1929), the Court of Appeals held that such deficiencies can not be corrected by a nunc pro tunc order. In view of the above, it is our opinion that the minutes of a board of education can not be amended by simple act of the present board nor by inclusion of an adoption of the statement of former board members into the minutes by the present board. (See. OAG 78-796).
This office has been and is still of the opinion that the language of KRS 161.545(2)(a) is clear and unambiguous. As such, the member in question must submit to the KTRS a copy of the board of education minutes wherein permission for such leave of absence was granted. OAG 78-778 addressed the problem of how a tracher or other school board employee may overcome this problem where no specific reference to the leave of absence was made in the board minutes. That opinion indicates that a member so situated may be entitled to relief where the minutes of the board, viewed as a composite whole, do indicate that the member in question was granted a leave of absence. An example of what the member would thereby have to submit to the KTRS is appropriate at this point. If a teacher was employed by the board of education in 1945, as shown through the payroll records for that year, but in 1945 no mention in the payroll records was made of that teacher, then in 1947 the same teacher was again on the payroll records as employed, and there was no mention in the board minutes of 1945 to indicate, as there would have to be, that the teacher's employment had been terminated nor any mention in 1947 that the teacher had been reemployed, the inescapable conclusion would have to be that the teacher was on a granted leave of absence.
This is the only type of evidence, other than the specific statement from the board minutes granting leave, which a teacher could submit to the KTRS to comply with KRS 161.545(2)(a).
In answer to your specific question dealing with Ms. Clark's case, I will have to assume that the board minutes for the 1968-69 school year do not show that the board fired or terminated her employment; in addition, I will assume that the board did not act on a recommendation to formally rehire her. If these assumptions are correct, then her only possible status would have been leave of absence during the school years 1968-69 and 1969-70. I wish to stress that the burden of proof would still be on Ms. Clark to produce the board minutes for the years in question showing that she was not terminated, then rehired. Under such circumstances, it is the opinion of this office, in line with OAG 78-778, that Ms. Clark would meet the requirements of KRS 161.545(2)(a).