Request By:
Dr. Ann Bardwell
Kentucky State Board of Education
3163 Richmond Road
Lexington, Kentucky 40511
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
In your capacity as a member of the State Board of Education you have requested that the Office of the Attorney General Consider a matter involving extended employment for certain certified school personnel units in our public common schools. You stated you have been working with a task force appointed by Superintendent of Public Instruction Barber to assist in the development of administrative regulations to govern the use of extended employment as provided for in KRS 157.390(2)(a). You related that during the deliberations of this task force a question arose as to whether any of the days of extended employment granted by state board regulations, pursuant to KRS 157.390(2)(a), could be used as vacation time and/or holidays. You cited as an example the situation where a certified employee of a school district served in a school position so as to be eligible for 55 extended working days. These 55 days plus the regular 185 day school term totals 240 school days to be funded by the foundation program. You continued that it was the understanding of the task force that of the 240 days, 4 days within the regular 185 day school term could be used for holidays in accordance with KRS 158.070.
The question you have presented for a formal opinion from this office is whether any days other than those provided for in KRS 158.070 that are state funded with foundation monies can be used for vacation and/or holidays. That is, may any of the state funded extended employment days be used for vacation or holidays. For the reasons stated below, it is the formal opinion of the Office of the Attorney General the present school laws in light of the Kentucky Constitution do not authorize or permit any state funded extended employment days to be used for vacation or holidays.
The support for the conclusion reached above comes from the language found in pertinent school statutes and the Kentucky Constitution education related provisions. We also believe from a common sense approach that an anomalous situation would exist if days are granted for extended employment, meaning to afford time to accomplish that which cannot be done in the regular school calendar, and then permit some of these days to be taken off with pay as holidays and vacation.
The school law statute that first needs to be looked at is KRS 157.390(2)(a). The relevant part of this subsection reads:
* * *
"(2)(a) The amount to be included in each school year in the foundation program of a district for teachers' salaries shall be determined by multiplying the number of teachers in each rank, not to exceed the number of classroom units allowed, by the amount set forth in the biennial budget schedule for each rank and experience for a term of one hundred eighty-five (185) days. Provided, the amount to be included for units alloted under KRS 157.360(5), (7), (8), (9) and (11) shall be increased proportionately if the personnel for such units are employed for longer than the regular school term and such employment is approved by the superintendent of public instruction under Kentucky administrative regulations of the appropriate state board.
Obviously KRS 157.360(5), (7), (8), (9) and (11) then need to be considered and when so we see authorized vocational units, administrative and special instructional service units, supervisors of instruction units, directors of pupil personnel units, and local superintendent units. Referring back to KRS 157.390(2)(a), extended employment beyond the regular school term for school personnel in these five areas is to be subject to approval by the Superintendent of Public Instruction in accordance with administrative regulations promulgated and adopted by the State Board of Education. At the present the regulations of the State Board are those found at 702 KAR 1:020 . Without setting out in full this regulation, suffice it to be said, the maximum extended employment authorized for any school personnel unit position is 2.75 months, that is 55 days. Twenty school days constitute a school month in the common schools of Kentucky. KRS 158.060.
Central to our consideration of the issue presented is the fact we are looking at the amount of state foundation program money that can go to a local school district in a school year for certified personnel salaries. KRS 157.310 sets out the legislative intent in enacting the foundation program legislation and states in part as follows:
"KRS 157.310 to 157.440 and subsection (2) of KRS.990, shall be interpreted as a measure to provide for an efficient system of public schools throughout the Commonwealth, as prescribed by section 183 of the Constitution of Kentucky, and for the manner of distribution of the public school fund among the districts and its use for public school purposes, as prescribed by section 186 of the Constitution."
KRS 157.320(8) defines the "public school foundation program fund" as "the fund created by KRS 157.330 for use in financing education in public elementary and secondary schools." KRS 157.330 provides:
"(1) There is hereby established the public school foundation program fund consisting of appropriations for distribution to districts in accordance with the provisions of KRS 157.310 to 157.440.
"(2) The resources of the public school foundation program fund shall be paid into the state treasury, and shall be drawn out or appropriated only in aid of public schools as provided by statute."
The genesis of the so called "common school fund" is found in section 184 of the Kentucky Constitution. The provision vision for distribution and use of the common school fund is set forth in section 186 of the Kentucky Constitution, as amended in 1952 and ratified by voters at the November 1953 election, and states:
"All funds accruing to the school fund shall be used for the maintenance of the public schools of the Commonwealth, and for no other purpose, and the General Assembly shall by general law prescribe the manner of the distribution of the public school fund among the school districts and its use for public school purposes."
The former Court of Appeals in Talbott v. Kentucky State Board of Education, 244 Ky. 826, 52 S.W.2d 727, 731 (1932), stated with respect to this constitutional section as follows:
"Section 186 of the Constitution deals with and applies exclusively to common school funds heretofore or that hereafter may be levied and collected by the commonwealth in its sovereign capacity and from the state at large. It has no application to public school funds that are levied, collected, and raised by subdivisions of the state for the purpose of supplementing the state school fund for their exclusively local purposes. Although such supplemental local tax may become in a sense a state tax after it has been provided for and collected by the local community, the state has no right to take charge of it and distribute it throughout the state among the common schools."
In concert with the Talbott decision, KRS 157.010 should be noted which provides as follows:
"The school fund shall consist of the fund dedicated by the Constitution and laws of this Commonwealth for the purpose of sustaining a system of common schools therein. The annual resources of the fund shall consist of:
"(1) The interest on the bond of the Commonwealth for $1,327,000 at the rate of six per cent (6%) per annum payable on the first day of January and July of each year.
"(2) The interest on the proceeds of $52,000 formerly invested in Liberty Loan Bonds under authority of chapter 6 of the Acts of 1920, now invested by the state board for elementary and secondary education.
"(3) The dividends from whatever remains of the original investment of $73,500 in the capital stock of the Bank of Kentucky.
"(4) The interest on the bond of the Commonwealth for $381,986.08 due the several counties and remaining a perpetual obligation against the Commonwealth for the benefit of the respective counties, at the rate of six per cent (6%) per annum payable annually on the first day of July to the counties entitled to it and in the proportion to which they are entitled, to be used exclusively in aid of common schools.
"(5) The interest at six per cent (6%) per annum, payable on the first day of January and July each year, on $606,641.03 received from the United States under an act approved March 2, 1891 for which the Commonwealth has executed bond pursuant to chapter 6 of the Acts of 1892.
"(6) Such sums as are appropriated by the general assembly in aid of the common schools."
The 1982 General Assembly in House Bill 295 in the Department of Education portion of the budget appropriated funds for extended employment. The language of House Bill 295 reads in this regard:
"Local school district personnel who are employed beyond the regular school term of 185 days shall be so employed in accordance with the provisions of KRS 157.390(2)(a) and 702 KAR 1:020, except that for purposees of calculation of salary allotments under the Foundation Program, the number of days of employment beyond 185 days shall be established in regulations promulgated by the State Board of Education upon recommendation by the Superintendent of Public Instruction, and funding for these extended employment days shall not exceed $18,761,100 in fiscal year 1982-83 and $19,820,000 in fiscal year 1983-84."
Thus, after reviewing the constitutional sections and statutory provisions referenced or set out above, it should be evident the issue we have decided in our conclusion is whether the constitutional and legislated sums available for distribution in aid of the common schools can be expended for extended employment of various school personnel and some of these days be used as holidays and for vacation. Although this office has never precisely considered this issue, we believe several prior opinions are persuasively supportive of our conclusion. For example, in OAG 64-221, we concluded, citing sections 180 and 184 of the Kentucky Constitution, that school monies could only be expended for school purposes and that since full value must be received for monies expended, a local school board could not pay school employees for work not performed. The same conclusion was reached in OAG 64-227 where in issue was whether a board of education could pay a principal his salary on days when the principal did not perform his duties. In earlier opinions, OAG 61-569 and 63-283, we had concluded school districts could not grant a sabbatical leave with pay to its teachers.
What amounts to a constitutional use of common school funds has been narrowly drawn by our Kentucky appellate courts. The test to be used was possibly best set out in Board of Education v. Spencer County, 313 Ky. 8, 230 S.W.2d 81, 83 (1950), as follows:
"The test is, what constitutes an educational purpose within the meaning of Section 184 of the Constitution, rather than whether an activity might be beneficial to education."
It is our belief that without specific legislation so indicating, extended employment, paid for by state foundation money, cannot be found to be constitutionally acceptable if some of the extended days of employment beyond the regular school term are permitted to be taken as holidays or vacation. Comparison should be made, we believe, to KRS 161.152, authorizing emergency leave for school employees, and to KRS 161.154, authorizing personal leave days for school employees. Each of these statutory provisions have a subsection containing a legislated presumption that payments are for services rendered, are for an educational purpose and that such payments will not affect the eligibility of any school district to participate in the foundation program.
The absence of similar legislation, we believe, requires us to conclude there is no "educational purpose" derived from determining days need to be added to a regular school term in certain certified personnel unit areas paid for with state school funds and then have any of those days consumed by holidays and/or vacation when no services are being rendered.
We trust the above adequately responds to the concerns of the task force on extended school employment.
Footnotes
Footnotes
* Proposed regulations intended to supersede 702 KAR 1:020 are published in the "Administrative Register", Volume 9, Number 1 - July 1, 1982, on pp. 87-88 and tentatively codified as 702 KAR 1:025. These proposed regulations would not become effective until June 30, 1983.