Request By:
Mr. Harold D. Webb
Superintendent
Richmond Public Schools
P.O. Box 768
Richmond, Kentucky 40475
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
You have asked the Office of the Attorney General to consider several questions regarding the possible termination of a tenured certified employee's contract. You informed us a tenured contract principal in your school district has pleaded guilty to the misdemeanor of aiding and abetting the commission of official misconduct in the first degree. With this information as background, you have posed the following questions:
"1. Does this admission constitute grounds for contract termination under 161.790 or other regulations?
"2. If this constitutes grounds for contract termination, are there any time lines to be observed in bringing the charge(s)?
"3. If this constitutes grounds for contract termination, must the Board apply the procedures as specified in 161.790 in this case?
"4. If this constitutes grounds for contract termination, please elaborate the exact role of a superintendent in this procedure.
"5. If this constitutes grounds for contract termination, please specify details of a Board hearing if charges for dismissal are brought."
Before addressing your questions, we feel a review of and some comments about the applicable school law is in order. As referenced in your questions, the key statute for consideration is KRS 161.790. This statutory provision in subsection (1) lists the "causes" for which a teacher's contract may be terminated and the procedure to be carefully followed if such action is taken. KRS 161.790(1)(a)-(d) reads as follows:
"(1) The contract of a teacher shall remain in force during good behavior and efficient and competent service by the teacher and shall not be terminated except for any of the following causes:
"(a) Insubordination, including but not limited to 1. violations of lawful rules and regulations established by the local board of education for the operation of schools, and 2. refusal to recognize or obey the authority of the superintendent, principal, or any other supervisory personnel of the board in the performance of their duties;
"(b) Immoral character or conduct unbecoming a teacher;
"(c) Physical or mental disability;
"(d) Inefficiency, incompetency, or neglect of duty, when a written statement identifying the problems or difficulties has been furnished the teacher or teachers involved." With respect to the facts you have provided it would seem that only the causes set out in KRS 161.790(1)(b), supra, would be possibly applicable, that is "immoral character or conduct unbecoming a teacher. " It must be understood that the term "teacher" in this statute embraces all certified employees in a school system below the superintendent. A principal or other administrator, in the context of school law, is first a teacher. In other words, the school administrator is a teacher assigned to administrative responsibilities in a school system. Note, KRS 157.320(13) and KRS 161.720(8).
Of the statutory "causes" prescribed in KRS 161.790 for terminating a teacher's contract the least litigated has been those of "immoral character or conduct unbecoming a teacher. " And, as with the other listed discharge for cause categories, there are no definitions to guide a local superintendent and board of education relative to the scope of these terms. Obviously then there is some discretion to be exercised in a fair and reasonable manner by a superintendent and subsequently by a board of education in commencing and conducting a proceeding to terminate a teacher's contract based upon one or more of these general legal cause categories. It is not believed the lack of definitions or need for exercising such discretion presents a problem of vagueness in KRS 161.790. This legal issue of vagueness was soundly analyzed in "The Dismissal of Public Schoolteachers For Aberrant Behavior", Richard H.C. Clay, 64 Ky. L.J. 911 (1975-76).
Another matter regarding KRS 161.790 needs to be addressed before discussing the "immoral character and conduct unbecoming a teacher" causes. That matter is the thrust of and resulting effect of KRS 161.790(2)(a) which reads:
"(2)(a) Charges on the above causes shall be supported by written records of teacher performance by the superintendent, principal, or other supervisory personnel of the board."
This subsection may arguably be read in several different ways. One way, which we cannot subscribe to, is that any actions of a teacher, in order to stand as a basis for termination of a teacher's contract, may only involve the exercise of teaching duties. That is, for example, that only the display of immoral character or conduct unbecoming a teacher directly in the line of duty could serve as cause for termination of a teacher's contract.
Another argument with respect to KRS 161.790(2)(a) is that it requires a "one free bite" treatment. The thinking on this point in this light would be that written teacher performance records would have to be on file and that only with a subsequent act showing immoral character or conduct unbecoming a teacher would cause exist for a termination of contract proceeding under KRS 161.790. We also reject this interpretation, although we do recognize that the
Court of Appeals in Carter v. Craig, Ky.App., 574 S.W.2d 352, 356 (1978) said that "Obviously, one purpose of the requirements of KRS 161.790(2)(a) is to make the teacher aware of deficiencies so that she or he may correct same before being terminated. " Actually this "notice of deficiency/time to correct" concept is more in line with, and we believe unquestionably required, when the cause for termination is either "inefficiency, incompetency, or neglect of duty. " KRS 161.790(1)(d) and see
Blackburn v. Board of Ed. of Breckinridge Cty., Ky.App. 564 S.W.2d 35, 37 (1978). Charges on these "causes" are more than likely not shown by a mere single dereliction. However, we believe that a single act showing immoral character or conduct unbecoming a teacher may be sufficiently serious enough on its own to stand as the basis for termination of teacher contract proceedings. The fulfillment of the requirements of KRS 161.790(2)(a) in situations of this latter sort would, we believe, be accomplished by some supervisory personnel of the board, superintendent or principal, preparing in writing the manner in which it is believed the teacher's performance will be compromised or in whatever way adversely affected by the act showing immoral character or unbecoming conduct.
We turn now to examining the "immoral character" and "conduct unbecoming a teacher" causes. As noted earlier, these terms are not defined in Kentucky's school law. Black's Law Dictionary, 5th Edition, page 676 defines "immoral" as "contrary to good morals; inconsistent with the rules and principles of morality; inimical to public welfare according to the standards of a given community, as expressed in law or otherwise." In this term, the word "immoral" modifies the word "character". Character may be described as the qualities of an individual that serve to distinguish a person from other people. That is, a person is honest or dishonest, truthful or untruthful, etc. Although evidence of character is usually inadmissible in civil litigation, an exception to this rule is where evidence of character is offered to prove a trait of character an issue by the pleadings. See Robert G. Lawson, Kentucky Evidence Law Handbook, page 12-13. Since a trait of character is the issue under KRS 161.790(1)(b), one method of proving character would be by a showing of a specific act or acts. Thus, we submit a charge of "immoral character," as used in KRS 161.790(1)(b), may be based upon a specific act inimical to the public welfare and perhaps more importantly the welfare of a community school system.
In considering the term "conduct unbecoming a teacher" we gain some slight help from the case of
Gover v. Stovall, 237 Ky. 172, 35 S.W.2d 24 (1931). This school teacher case involved contract termination proceedings based upon the facts that the teacher had gone into a school building at night between 8 and 9 o'clock with three young ladies, one of which was a pupil in the school and had remained in the school for nearly an hour without turning on any lights. Causes for teacher contract termination at that time included "immorality" and "misconduct" . The former Court of Appeals in Gover addressed the term "misconduct" as follows:
"Two of the definitions of the word 'misconduct' given by Mr. Webster are 'To conduct amiss; bad behavior.' The word has a broad scope, and is more comprehensive than 'immoral conduct' or 'immorality, ' since the acts composing them must necessarily be immoral in their nature. But conduct might not be intrinsically immoral and yet be 'misconduct' as growing out of the status and social relationship of the one engaged in it." 35 S.W.2d at 26.
The Court went on to say:
"Plaintiff in this case was a teacher in the public schools, and was so circumstanced as that both patrons and pupils regarded him in the light of an exemplar whose conduct might be followed by his pupils, and the law by necessary intendment demands and requires that he should not engage in any conduct inevitably calculated to invite criticism and of a nature and character justly productive of suspicions of immorality. . . . . The statute (section 4472) prescribing the grounds for dismissal employs, among others, the two terms 'immorality' and 'misconduct, ' showing that it was the intention and purpose of the Legislature to embrace more conduct than what is properly classified as 'immorality' and to incorporate as additional grounds not embraced strictly within its scope, but to also include such other facts as lay within the adjacent zone of 'misconduct, ' and vested the school authorities with a sound discretion to determine the intended application of that term;" Id.
It should be clear in light of the above that this office cannot actually answer your first question "yes" or "no". Rather we believe, as stated in Gover, supra, that as the superintendent, you and the board of education must exercise sound discretion to determine whether the circumstances involving the principal in question come within the intended application of the "immoral character" or "conduct unbecoming a teacher" causes for termination of a certified employee's contract.
We have been unable to find any Kentucky case law to assist you and in turn the board of education in considering whether particular actions of a teacher fall within the scope of the KRS 161.790(1)(b) causes for discharge. It is certainly our belief that acts involving dishonesty, sexual misconduct or criminal action may be considered as either immoral conduct or conduct unbecoming a teacher. However, we hasten to add that not every act involving dishonesty, sexual misconduct or criminal action can be deemed to impair the services of the teacher or administrator in instructing and supervising students or other school employees. We think this point is critical. School law writers indicate that school officials must be able to show that a nexus, or as it is sometimes referred to "rational connection", exists between the conduct and school purposes such as to justify the discharge of a school employee. See, for example, William D. Valende, Law In The Schools, page 185. The rational connection test has been considered, in other context, to be a constitutional requirement of due process. See
Schware v. Bd. of Bar Examiners, 353 U.S. 232 (1957). As an aside, note that the same rational connection requirement has been said to be applicable to the discipline of a student for out-of-school conduct. See 53 A.L.R.3d 1128, "Discipline of Pupil for Nonschool Conduct."
Various out-of-state courts have grappled with factors to be considered to assist school officials in determining whether "misconduct" of a teacher is sufficiently connected to the performance of the teacher's duties to support termination. Several jurisdictions have adopted the "Morrison test" factors which come from the Supreme Court of California case of
Morrison v. State Board of Education, 461 P.2d 375 (1969). The Morrison factors, possibly to be considered, paraphrased, are these: (1) the age and maturity of the teacher's students (2) the likelihood that his conduct may adversely affect students or other teachers (3) the degree of such adversity (4) the proximity or remoteness in time of the conduct (5) the extenuating or aggravating circumstances surrounding the conduct (6) the likelihood that the conduct may be repeated (7) the motives underlying it (8) the extent to which discipline may have a chilling effect upon the rights of the teacher involved or other teachers. For cases following the Morrison factors consideration, see
Weissman v. Board of Ed. of Jefferson Cty. School Sistrict, 547 P.2d 1267 (Co. 1976);
Hoagland v. Mt. Vernon School Dist., 623 P.2d 1156 (Wash. 1981);
Thompson v. Southwest Sch. Dist., 483 F.Supp. 1170 (W.D. Mo. 1980). Also, see the article, "The Dismissal Of Public Schoolteachers For Aberrant Behavior", supra.
In Weissman, supra, the Supreme Court of Colorado stated regarding the use of the Morrison factors:
"[t]he board's power to dismiss and discipline teachers is not merely punitive in nature and is not intended to permit the exercise of personal moral judgments by board members. Rather, it exists and finds its justification in the state's legitimate interest in protecting the school community from harm, and its exercise can only be justified upon a showing that such harm has or is likely to occur." Weissman at 1273.
In the Thompson case, supra, the Missouri Federal Court was faced with determining the legality of the termination of a teacher's contract on the basis that a female teacher was living with a man to whom she was not married but that she did plan to marry in the near future. The Missouri Federal Court stated it believed the term "immoral conduct" was intended to relate to conduct which would render a teacher unfit for the performance of his (or her) duties. Thompson at 1180. The Federal Court quoted from the Morrison decision as follows:
"In the instant case the terms denote immoral or unprofessional conduct or moral turpitude of the teacher which indicates unfitness to teach. Without such a reasonable interpretation the terms would be susceptible to so broad an application as possibly to subject to discipline virtually every teacher in the state. Morrison, supra, 1 Cal. 3d at 225, 82 Cal.Rptr. at 182-83, 461 P.2d at 382-83." Id.
Of the above illustrative cases cited, the Hoagland decision dealt with facts involving criminal conduct of a teacher. The Supreme Court of Washington stated that it rejected the argument that one's status, e.g. convicted criminal, was by itself sufficient to support a dismissal determination. The Court stated at page 1159:
"To permit a dismissal solely on the basis of a conviction would ignore the fact that 'the teacher who committed a indiscretion, paid the penalty, and now seeks to discourage his students from committing similar acts may well be a more effective supporter of legal and moral standards than the one who has never been found to violate those standards. . . . Since these conditions will vary from case to case, proof that one has at some past time committed a crime should not in itself suffice to demonstrate that he is not now and never will be a suitable behavior model for his students.'
Board of Educ. v. Jack M., 19 Cal.3d 691, 699-700 n 4, 566 P.2d 602, 139 Cal. Rptr. 700 (1977). Moreover, it would violate due process to discharge a teacher without showing actual impairment to performance. (Citations omitted)."
The Hoagland decision went on to say that a teacher should not be dismissed without a showing of the presence of the "Morrison factors." The Court stated:
"They are obviously relevant to any determination of teaching effectiveness, the touchstone of all dismissals." Hoagland at 1160.
For some other teacher contract termination cases involving criminal conduct, but not all of which resulted in the teacher being discharged, see
Gary Teach. U., Loc. No. 4, A.F.T. v. School City of Gary, 232 N.E.2d 256 (Ind. 1975) - theft;
Hale v. Board of Education, City of Lancaster, 234 N.E.2d 583 (Oh. 1968) - leaving scene of accident;
Neshaminy Fed. of Teachers v. Neshaminy Sch., 428 A.2d 1023 (Pa. 1981) - simple and aggravated assault, recklessly endangering another person, terroristic threats and felonious restraint;
Lesley v. Oxford Area School Dist., 420 A.2d 764 (Pa. 1980) - shoplifting;
Lindgren v. Board of Trustees, High Sch. Dist. No. 1, 558 P.2d 468 (Mont. 1976) - driving under the influence of intoxicating liquor and driving without a valid driver's license.
Therefore, while this office is not in a position to consider whether the principal's misdemeanor conviction for aiding and abetting official misconduct in the first degree has a rational connection to his effectiveness in performing his school responsibilities, we believe your consideration of this matter, using the factors mentioned above or others, will lead you to an appropriate conclusion as to whether to initiate, contract termination proceedings under KRS 161.790.
With respect to your second question, we are unaware of any time constraints to be observed in bringing charges under KRS 161.790. However, since the statutory authority to commence the proceeding rests exclusively with you as superintendent, KRS 161.790(3) by way of a recommendation, we caution you to be mindful of the general concept of "staleness". That is courts tend to look with disfavor on termination proceedings involving allegations of wrongdoing of some sort that have not occurred fairly recently. In
Blackburn v. Board of Ed. of Breckinridge Cty., Ky. App., 564 S.W.2d 35, 37 (1978), supra, the Court of Appeals commented that KRS 161.790(1)(d) and the provision for providing a written statement of a problem involving ineffeciency, incompetency or neglect of duty was to provide "protection for the teacher against a stale charge."
Your third question asks, if there is determined to exist grounds for cause for contract termination, whether the procedures in KRS 161.790 are to be followed. Emphatically the answer is "yes".
In your fourth question, you have asked for advice on your role as superintendent in the termination of a teacher's contract. We have touched on this aspect above. That is, you may be the individual who prepares or if not, will receive from some other supervisory personnel, written documentation on charges against the teacher (principal). See KRS 161.790 (2)(a). After preparation or receipt of such documentation as the local superintendent, you must decide whether you are going to recommend that the certified employee's contract be terminated. KRS 161.790(3). Thus, the threshold discretion to commence or not a contract termination proceeding is yours as the local superintendent of schools. If you decide to recommend termination, then the specific notice and hearing procedures of KRS 161.790 come into play. You may also, if you do decide to recommend termination, further recommend to the board of education that the teacher be suspended pending final action to terminate the contract. See KRS 161.790(5). Lastly, you should understand that once the board has commenced the contract termination process, you, as superintendent, have no lawful authority to prevent the termination proceedings from going forward by a withdrawal of your recommendation to terminate or otherwise. See
Bell v. Board of Educ., Ky.App., 557 S.W.2d 433 (1977).
Your last question asks this office to specify details of a board hearing to hear charges of cause for termination. Other than a careful following of the requirements of KRS 161.790 and affording of a fair hearing, at which the evidence in support of termination will be proffered through perhaps your testimony or that of others and possibly with the assistance of legal counsel and then cross examination and evidence in chief allowed on behalf of the teacher charged will be heard and considered by the board, we know of no other specific hearing requirements. The former
Court of Appeals in Knox County Board of Education v. Willis, 504 S.W.2d 952, 954 (1966) determined that a board of education was not required to, although would be authorized to, adopt formal procedural rules for the conduct of a hearing pursuant to KRS 161.790.
We trust the above information will be of assistance as you consider whether to recommend to the Board of Education that the principal's contract be terminated for cause pursuant to KRS 161.790. If we may of any further assistance to you concerning this matter, please contact us.