Request By:
Jack Clifford, Superintendent
Middlesboro Independent Schools
220 North 20th Street
Middlesboro, Kentucky 40965
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
As the Superintendent of the Middlesboro Independent Schools you have asked the Office of the Attorney General for advice concerning the application of KRS 160.291. You have asked the following three questions:
"1. Does a board of education have the option of not issuing pay for snow days (days school are not in session due to snow) to cafeteria workers and bus drivers even if the issuance of a check covering this period would essentially prohibit these employees from drawing unemployment compensation for these days not worked due to no fault of their own?
"2. Is there discrimination between certified employees and non-certified employees (cafeteria workers and bus drivers) due to the fact that teachers can accumulate snow bank days by extending the school day for time needed to generate those snow days (currently five allowed) while the nature of the job performed by bus drivers and cafeteria workers does not extend their workday-bus drivers and cafeteria workers' wages are determined by an hourly wage scale?
"3. Can non-certified employees be considered "salaried" employees although their daily, weekly, monthly or yearly income is determined by an hourly pay scale for unemployment compensation purposes?"
We will answer your questions in the order you have presented them. However, before responding, we believe it will be helpful to consider the history of KRS 160.291.
KRS 160.291 was first put on the books by the 1978 General Assembly. This legislation was prompted by the all too well-remembered harsh weather experienced in Kentucky during the winter of the 1977-78 school year. The 1978 version which had been passed with an emergency clause and became law on March 8, 1978, applied only to school teachers. It provided for teachers to continue to regularly receive their paychecks even though schools may have been closed due to the inclement weather. That is, the teachers were to get paid just as if no school days had been missed. The practical angle on this legislation was that the teachers had to make up those days missed and, of course, would fail to receive pay for the "makeup" days since they had already been paid for days they did not teach. Arguably, the requirements of Section Three of the Kentucky Constitution were satisfied by this procedure. ["All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services; but no property shall be exempt from taxation except as provided in this Constitution; and every grant of a franchise, privilege or exemption, shall remain subject to revocation, alteration or amendment."]
In 1979 this Office was asked to render an opinion to the then-Superintendent of the Jefferson County Schools regarding the payment of school bus drivers, food service employees, and clerical staff during periods of inclement weather and the resulting "snow days" when the schools were closed. We pointed out in OAG 79-337, copy attached, that KRS 160.291 was clearly limited to certified personnel (teachers) and that there was not a similar statute for non-certified or classified personnel. This Office concluded that in the absence of any authorizing statute, the Jefferson County Board of Education improperly had paid the classified personnel for "snow days" and having done so was required to credit those days paid against the last days to be worked by the individuals in question.
The 1980 General Assembly amended KRS 160.291 so that for the first time during the 1980-81 school year, all school employees working on a continuing, regular basis, except those employed on a twelve (12) months basis, were to be paid regularly. KRS 160.291(1), as amended, reads in full as follows:
"All school employes working on a continuing, regular basis, except those employed on a twelve (12) months basis shall be paid regularly, on dates determined by the employing board of education, during the school year. The gross salary received on each pay date will be an amount equal to the school employe's annual salary divided by the number of pay dates. Said salary amounts shall be paid on the prescribed pay dates without deduction for days on which schools were closed; provided, however, any time not worked for which pay is received must be made up prior to the end of that current school year, or pay so received shall be withheld from the final salary payment of that school year. "
The thrust of the provision remained the same, the difference being that all full-time employees were now covered, not just teachers. Also, stronger language more consonant with Kentucky Constitution Section Three was added. It is quite clear now that although a school employee is to receive pay for time not worked, that time has to be made up or pay is to be withheld from the final salary payment.
The big problem with the 1980 amendment is the continued use of the term, "salary. " Almost without exception the only school employees who receive a "salary" are the teachers and other certified personnel. Other employees, the classified personnel, are almost always paid on a days and hours basis. However, we believe KRS 160.291 must be viewed as applying to classified employees even though they may not be paid a "salary" in the sense that term is usually thought of because to interpret otherwise would be to continue to limit the statute to only school teachers and that, obviously, is not what was intended by the General Assembly. Thus, we are of the opinion KRS 160.291 applies to all school employees, certified and classified, who work on a continuing, regular basis excluding those employed on a twelve months basis. Note, the State Board of Education regulation relative to the procedure for payment of employees, 702 KAR 3:060, copy attached.
Another problem to be dealt with before answering your questions is presented by the possibility of accumulating so-called "snowbank" days. Snowbank days are gained by a school district adopting an extended schoolday plan. See 703 KAR 2:010, Section 3. The time in excess of the minimum six classroom hours school day (KRS 158.060) accumulates to build up days that, with the approval of the State Board of Education, may be used to make up days missed as a result of emergency, for example, severe, inclement weather. The problem with snowbank days, when considered in the context of KRS 160.291, is that the only employees of a school district that benefit from an extended schoolday plan are the teachers and other certified employees. Due to the nature of the work performed by bus drivers, janitors, and school cafeteria workers and other classified employees, it is not really possible to extend their days so as to accumulate "snowbank" days. Nevertheless, as nonsensical as it may seem and be in fact, we believe KRS 160.291 calls for all of the full-time, regular employees of a school district to be treated in parity. Thus, we believe that while school employees are to continue to receive their pay checks even though not actually working, it is the school district's obligation under KRS 160.291 and Kentucky Constitution Section Three to see that before the school year has ended, teachers and classified employees alike have only been paid for school days actually worked. In that classified employees most usually will not have performed any services for so-called snowbank days, these employees would be ineligible to be paid for these days in the final analysis. If classified employees have been already paid for such snowbank days, they would have to have deducted from their pay at the end of the school year an amount equal to the snowbank days pay received. As we concluded in OAG 79-337, supra, prepayment for snow days in the pay period when they occurred cannot be considered a bonus or gift because of provisions in the Kentucky Constitution. The same conclusion must be reached as to prepayment for "snowbank" days.
In view of the above, in answer to your first question, we do not believe school boards have an option on whether to pay classified employees for snow days. Again, all regular, full-time employees (except those employed on a twelve months basis) are to continue to receive their regular pay even though school is closed. Since there is no "unemployment" by the operation of KRS 160.291, we do not see any authorization for drawing unemployment compensation.
As to your second question, we do not believe there is any improper discrimination between classified employees and certified employees of a school district based upon an ability of teachers to participate in an extended school day plan (snowbank) days and an inability of classified employees to do the same. The fact is there are two distinct classifications of school employees. Nowhere does the law or Constitution require legitimate separate classifications to be identically treated. It is only the arbitrary classification and treatment of individuals that runs afoul of Kentucky Constitution Section Two and the Fourteenth Amendment to the United States Constitution. See Pritchett v. Marshall, Ky., 395 S.W.2d 253 (1963).
We believe we have answered your third question in the affirmative in the discussion of KRS 160.291, above.