Request By:
Benny Dale Coleman
Harlan County Board of Education
Harlan, Kentucky 40831
Opinion
Opinion By: David L. Armstrong, Attorney General; Paul E. Reilender, Jr., Assistant Attorney General
This is in reply to your letter of May 22, 1984, in which you have asked the Office of the Attorney General for an opinion regarding the provisions of KRS 160.350. Specifically, you ask the following question:
"I would like to request an opinion as to whether or not a local board of education, after having once fixed the term of a Superintendent's office can then change the number of years of the term."
The specific facts as set forth in your letter are as follows:
"The Harlan County Board of Education, of which I am a member, advertised statewide in the latter months of 1983 for applicants for the position of Superintendent and specified that the term would be for one year only beginning July 1, 1984 through June 30, 1985. On February 8, 1984 the board voted to hire Mr. Reecie Stagnolia as the Superintendent for a term of one year and set his salary at $17,000 plus base pay. On March 21, 1984 the board approved the minutes of the February 8th meeting.
On May 9, 1984 at the regular monthly board meeting a motion was made by boardmember Johnny Y. Blanton to rescind board order #16 of February 8th giving Mr. Stagnolia a one year contract and to give him a four year contract. The motion carried."
KRS 160.350 provides in part as follows:
"Each board of education shall appoint a superintendent of schools whose term of office shall begin on July 1, following his appointment. The appointment may be made for one (1), two (2), three (3) or four (4) years. The board shall fix the salary of the superintendent at not less than $1,200 per annum, to be paid in monthly installments. In the case of a vacancy in the office for an unexpired term, the board of education shall make the appointment so that the term will end on June 30. . . ."
In the case of Board of Education of Pendleton County v. Gulick, Ky., 398 S.W.2d 483 (1966), the court held that a board of education was without power to change the term of a superintendent except within a reasonable time before the end of the term and in a manner not to disturb an already established term of office. In Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26 (1930), the Court held that a term of office for superintendent of schools was established upon the adjournment of the meeting of the board of education at which the appointment was made and that the board of education had no further authority to act upon the term already created. See also Childers v. Pruitt, 511 S.W.2d 233 (1974).
Based on the above decisions it is the opinion of this office that the action of the Harlan County Board of Education taken on May 9, 1984, was ineffective to alter the term of office created by its action on February 8, 1984. However, as was noted in OAG 66-383, copy attached, a newly appointed superintendent is under no obligation to accept the term of office as set by the board of education. If the superintendent desires to reject the term, such action should be, although it is not required to be, taken in writing. If the appointment was rejected prior to the commencement of the term on July 1, 1984, the board of education would be free to create such a term of office and make such appointment at such a salary level as it desired. In such event the new appointment should have been made prior to July 1, 1984 and the minutes of the board meeting should have reflected that the new appointment was made pursuant to the formal rejection by the appointee of the action previously taken.
You also ask that if for any reason the superintendent elect did not want the one year contract and resigned, would not the person taking his place still be limited to the one year contract. The answer to your question is in the affirmative. Any person filling the vacancy of the unexpired term would be limited to the unexpired term previously established. Childers v. Pruitt, supra.
Also, for your information, the 1984 General Assembly amended KRS 160.350 so as to change the law with respect to vacancies occurring in an unexpired term. Prior to the 1984 amendment of KRS 160.350, if a vacancy occurred during an unexpired term any person filling the vacancy of the unexpired term would be limited to the unexpired term previously established. However, effective July 13, 1984, KRS 160.350 will treat vacancies occurring in unexpired terms as follows:
"Each board of education shall appoint a superintendent of schools whose term of office shall begin on July 1, following his appointment. The appointment may be for a term of no more than four (4) years. In the event a vacancy occurs in the office of superintendent prior to the expiration of the term set by the board, the term shall expire on the date the vacancy occurs. The board may thereafter appoint a superintendent for a new term as provided herein and such term shall begin as of the date of the superintendent's appointment, except when the vacancy occurs during the time between a school board election and when the newly elected members take office. When a vacancy occurs during this period, the position shall not be filled until the new members take office, but the board may appoint an acting superintendent to serve a term not to exceed six (6) months. This appointment may be renewed once for a period not to exceed three (3) months. No superintendent shall resign his term and accept a new term from the same board of education prior to the expiration date of his present term. . . ."
Thus, for vacancies in unexpired terms occurring on and after July 13, 1984, the amendments to KRS 160.350 have modified the Gulick and Pruitt decisions as to how those decisions treat vacancies in unexpired terms.
I trust this will answer your questions.