Request By:
David B. Gover, Ed.D.
Superintendent
Paris City Schools
301 West Seventh Street
Paris, Kentucky 40361
Opinion
Opinion By: Steven L. Beshear, Attorney General; Robert L. Chenoweth, Deputy Attorney General
You have asked the Office of the Attorney General to consider whether a local board of education may employ or continue to employ a teacher who has reached the age of 70. It is the advisory opinion of the Office of the Attorney General the answer is that such continued employment is permissible.
Several statutory provisions are to be considered in supporting our conclusion. The first is KRS 161.720(4) which defines the term "continuing service contract" to mean "a contract for employment of a teacher which shall remain in full force and effect until the teacher resigns or retires, or reaches the age of sixty-five (65) or until it is terminated or suspended as provided in KRS 161.790 and 161.800." Note, however, in OAG 79-204, copy attached, this office concluded that this subsection providing for the automatic termination of a continuing service contract for a teacher at age 65 was in conflict with 29 U.S.C. § 631 and 623(a)(2) and that the Federal Age Discrimination in Employment Act as amended in 1978 requires the "age of seventy (70)" to be substituted for the age of 65. Your question, then, is to the legal possibility of employing a teacher after 70 on a year-to-year contract basis or, that is, on a limited contract. KRS 161.720(3). We see nothing in the tenure laws to preclude additional years of employment past the age of 70.
Also to be considered are the Kentucky Teacher Retirement laws. KRS 161.600 addresses "retirement conditions." Subsection (2) reads:
"(2) Any member shall be automatically retired as of July 1 next following his seventieth birthday, providing, however, that a member reaching age seventy (70) and having fewer than five (5) years of Kentucky service, two (2) years of which are subsequent to July 1, 1941, shall receive a refund of the members' accumulated contributions as provided in KRS 161.470(6) in lieu of a retirement annuity. "
However, we do not believe this provision has any actual impact on this issue. We have checked with the Kentucky Teacher Retirement System and have been informed that if your board were to adopt a policy along the lines indicated, under the authority of KRS 160.340(2)(e), and a teacher over 70 was employed, that teacher will pay no contributions into the Kentucky Teacher Retirement System and of course would be unable to receive an annuity from the retirement system while continuing to work.