Request By:
Mr. Robert E. Ruberg
O'Hara, Ruberg & Taylor
209 Thomas More Park - Suite C
P.O. Box 17411
Covington, Kentucky 41017-0411
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
You have asked the Office of the Attorney General to consider a matter relating to a teacher's leave of absence pursuant to KRS 161.770. The pertinent factual background you provided is that the Board of Education of Kenton County granted a leave of absence for maternity reasons to a teacher who is not on tenure. The leave of absence was granted on December 12, 1983. The leave began on January 1, 1984, and is to expire on June 6, 1984.
You further informed this office the teacher in issue has received poor evaluations for school year 1982-83 and again this current school term. The teacher has been in the Kenton County School System for two years. You indicated the school district's superintendent would like to review this teacher's evaluations and if believed warranted, recommend to the board the non-renewal of this teacher's contract.
As pointed out by you, KRS 161.770(3) states:
"(3) Upon the return to service of a teacher or superintendent at the expiration of a leave of absence, he shall resume the contract status which he held prior to such leave."
The question you presented is: "If a teacher is entitled to resume contract status upon return can they while on leave of absence have their contract non-renewed where they are a non-tenured teacher. " It is the formal opinion of this office that a limited contract teacher on a leave of absence under KRS 161.770 may still be recommended by the local superintendent for non-renewal of the teaching contract.
We first acknowledge that your question is one not before previously considered by this Office. You stated to us that you had found very little in the way of court decisions on this issue. We have found none that are of any assistance. However, we believe a careful analysis of the statutory law regarding the limited contract status, of KRS 161.770(3), along with a consideration of the usual meaning of a "leave of absence" supports our conclusion to your difficult question.
KRS 161.720(3) defines the term "limited contract" as "a contract for the employment of a teacher for a term of one (1) year only or for that portion of the school year that remains at the time of employment." It is thus clear that a teacher on a limited teaching contract only has a statutorily protected expectation of employment for a one year term. We know from the statutory law that a teacher who has been employed in a school system four out of six years (four limited contracts) is eligible for consideration for continuing service contract status, or that is, tenure. See KRS 161.740, KRS 161.750 and also KRS 161.720(4).
We have gone through the above in an attempt to place in perspective the critical language in question of KRS 161.770(3). The contract status referenced in this portion of KRS 161.770 must be either that of a limited contract or continuing service contract as noted above.
It is obvious that merely reflecting upon the definitions of teacher employment contracts and the language of KRS 161.770(3) does not answer your question. We believe this becomes possible only after considering the legal nature of a leave of absence.
In OAG 73-679, copy attached, we reviewed the legal significance of a leave of absence under KRS 161.770. We determined that when a teacher is on a leave of absence, the teacher is not legally separated from his or her employer, but instead only temporarily excused from performing the duties of the position. The individual is still an employee and by being so continues to be subject to the laws generally and specifically applicable to the status of an employee. We concluded in OAG 73-679 that a teacher on a leave of absence could be guilty of violating KRS 156.480, the conflicts of interest provision, and be subject to losing their employment for such act. By like token, we believe the teacher on a leave of absence is subject to the usual application of school laws as to their employment contract status.
The consideration of a couple of possible situations will illustrate the soundness of our conclusion. For example, a conclusion contrary to that we have reached would place a limited contract teacher on a leave of absence the last semester of a school year in a better position than a limited contract teacher not on leave. That is, a contrary conclusion would dictate that while the non-tenured teacher not on leave would be subject to receiving a non-renewal of teaching contract notice before April 30 (KRS 161.740 and KRS 161.750), the non-tenured teacher on a leave of absence could not receive such a written notice. If the teacher on leave could not be recommended for non-renewal of the teaching contract, then the teacher would be entitled to another full year limited contract.
A further expansion of the above set of supposed circumstances would be where a teacher was in the fourth year of limited contract teaching in a school system and went on a leave of absence under KRS 161.770 after teaching for at least 140 days. See KRS 161.720(2) for the definition of a "year" as concerns teacher tenure and also see OAG 76-278, copy attached. If a superintendent was unable to recommend a teacher in these circumstances not be given another contract, then by operation of law the teacher would have to be given a tenured contract. See KRS 161.740 and KRS 161.750. It would not be legal to give a teacher a fifth limited teaching contract.
We do not believe KRS 161.770(3) may be construed so as to place a limited contract teacher on leave of absence in a different, better or worse, position than every other limited contract teacher in a school system. Therefore, a non-tenured teacher on leave of absence at the time renewal or not of their contract comes under consideration (before April 30th), may be recommended by a superintendent for non-renewal the same as all other limited contract teachers in the school system. We view the language in KRS 161.770(3) to be applicable and limited to a return to educational responsibilities from a leave of absence during a given contract period, which, for a limited contract teacher is for a one year period only. This was the position reached in 1956 OAG 38,765, copy attached. We stated we believed the teacher would have a good cause of action for damages sustained as a result of the school board's failing to reinstate the teacher for the balance of the school term upon the teacher's return to the school district and the availability for teaching in the teacher's former position.
We trust the above will be of assistance to you and the Board of Education of Kenton County.