Request By:
Mr. G. C. Garland
Superintendent
Laurel County Schools
1715 South Main Street
London, Kentucky 40741
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
You have requested the Office of the Attorney General to answer a question involving the manner in which a local superintendent of schools may acquire tenure in a public common school in the Commonwealth. The facts underlying your question are that a teacher attains tenure in one school system and then accepts the position of superintendent of schools in another school district. You ask whether the individual acquires or may acquire tenure in the second district as a result of his or her service as superintendent, and, if so, at what time.
Your question is subject to a twofold consideration. The response to one part of your question is that pursuant to KRS 161.721, a superintendent may acquire tenure in a school system. This section of our school law reads as follows:
"The superintendent shall be eligible for continuing contract status when he meets all requirements prescribed in KRS 161.720 to 161.810 for continuing contracts for teachers. "
This office on several occasions has considered the legal effect of this provision. See OAG 76-82, OAG 76-99 and OAG 79-213, copies attached. We quote from OAG 76-82 extensively, as follows:
"In light of these statutory provisions we believe the intent of the General Assembly in 1944 was to permit one appointed as a superintendent under KRS 160.350 to become eligible for continuing contract status in a school district when he meets the requirements for that type of status as is required for teachers. This is to say that if an individual appointed as superintendent under KRS 160.350 already has continuing contract status in the district, he need not lose that status upon being appointed superintendent. In this type of situation at the time of appointment to the superintendent's position the individual has met all requirements for continuing contract status applicable to teachers and is immediately eligible to continue with continuing contract status in the district. If, on the other hand, the individual appointed as superintendent does not have continuing contract status in the district at the time of the appointment, when he as superintendent meets the continuing contract status requirements for teachers, he becomes eligible for that status with the district."
We continued in the opinion, citing another prior opinion, OAG 62-86, copy attached, as follows:
"On the basis of the above-cited authorities, it is the opinion of this office that a local school superintendent may achieve continuing service status which would guarantee to him a right of reemployment in the school district, but not necessarily in the capacity of superintendent. That is, he could be re-employed to serve as a teacher, principal, or in a related position within the school district. "
The second aspect of your question is whether the provision for so-called "portable tenure" is applicable to the situation you described. This provision is set out in KRS 161.740(1)(c) as follows:
"(1) Teachers eligible for continuing service status in any school district shall be those teachers who meet qualifications listed in this section:
* * *
(c) When a teacher has attained continuing contract status in one (1) district and becomes employed in another district, said teacher shall retain that status provided, however, that a district may require a one-year probationary period of service in that district before granting that status."
The Kentucky Supreme Court recently, in Carpenter v. Board of Ed. of Owsley Cty., Ky., 582 S.W.2d 645 (1979), held that this portable tenure provision was only available "to those teachers who currently hold tenure at the time of their employment in another district." It is our opinion that the literal language of KRS 161.740(1)(c) precludes its application to the situation you have presented for our consideration. The basis for our conclusion on this latter part of your question stems from the fact that employment as a superintendent in the new district will not be employment as a teacher as defined in KRS 161.720 (1). KRS 161.720(1) reads:
"(1) The term 'teacher' for the purpose of KRS 161.720 to 161.810 shall mean any person for whom certification is required as a basis of employment in the public schools of the state with the exception of the superintendent. " (Emphasis added.)
We believe that while a superintendent may acquire tenure in the same manner as for teachers as noted above pursuant to KRS 161.721, that does not make an appointment as a superintendent under KRS 160.350, which is under an entirely different contractual basis and which may be for one, two, three or four years, employment where "teacher tenure" may be transferred to the position. Thus, we believe the teacher turned superintendent would be required to attain tenure in the new school system by following KRS 161.721 which, practically speaking, means to continue to be employed in the new district until a fifth-year contract has been given by that local board of education.