Request By:
Ms. Ramona C. Sima
Area Director for UniServ
Kentucky Education Association
328 Executive Park
Louisville, Kentucky 40207
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
You have requested an opinion of this office and provided us with the following facts to assume. The City of Shelbyville has recently enacted an occupational tax. Since three of the ten Shelby County schools are actually located in Shelbyville, some but not all of the teachers are required to pay the occupational tax. The questions you present are as follows:
1. Does the Shelby County Board of Education have the authority to reimburse those teachers who have to pay the occupational tax?
2. Is this situation affected by the single salary schedule law in anyway?
The following discussion applies to both of your questions.
KRS 157.350 provides, in part:
"Each district which meets the following requirements shall be eligible to share in the distribution of funds from the public school foundation program funds:
* * *
"(3) Compensates all teachers on the basis of a single salary schedule and in conformity with the provisions of KRS 157.310 to 157.440."
The definition of "single salary schedule" is provided in KRS 157.320(12), which states:
"(12) 'Single salary schedule' means a schedule adopted by a local board from which all teachers are paid for one hundred eighty-five (185) days and is based on training, experience and such other factors as the state board of education may approve and which does not discriminate between salaries paid elementary and secondary teachers. " (Emphasis added).
Additionally, 702 KAR 3:070(1) states that:
"[e]ach board of education shall adopt and submit for the approval of the State Board of Education a single salary schedule as defined in KRS 157.320."
The issues which you present and the statutory and regulatory language cited above were the subject of two prior opinions of this office, 1956 OAG 38,840 and OAG 77-427. This office reaffirms the following conclusions we reached in OAG 77-427:
"It is the position of this Office that 'the definition of "single salary schedule" is broad enough to cover' this proposal. 'We reach this conclusion by virtue of the fact that under KRS 157.320(13) (KRS 157.320(12), effective July 1, 1977) the local board may utilize factors other than training and experience to determine the salary schedule. Ample justification exists for boards' decisions that a teacher, assigned to a county school within the jurisdiction of the levying city, should not be penalized because of assignment to that particular location. This fact could well be construed as a "factor" on which the school board could reasonably be expected to prepare its salary schedule. ' OAG 38,840."
"We would therefore conclude that 'salary schedules may properly be prepared so as to increase the salaries of particular county teachers, teaching within the city, in an amount equal to the occupational tax imposed. ' OAG 38,840. Once such a salary schedule is adopted by the Jessamine County School Board, it must then be approved, upon the recommendation of the superintendent of public instruction, by the state board of education, before it is implemented. KRS 157.320(13) (KRS 157.320(12), effective July 1, 1977) and 702 KAR 3:070(1)."
We point out that in OAG 80-29 this office reached the opposite conclusion from that previously reached in OAG 77-427, OAG 38,840, and the conclusion reaffirmed in this opinion. However, OAG 80-29 was based upon the language of KRS 157.320 (12) (definition of "single salary schedule" ), as the statutory language then existed. In 1978, the General Assembly, in Senate Bill 312, amended KRS 157.320(12) to delete the phrase". . . and such other factos as the state board of education may approve . . . " As a result, in OAG 80-29 this office concluded:
"Thus, the 'such other factors' language relied upon in the prior opinions of this office to sanction the increase of salaries for teachers to off-set an occupational tax no longer exists. Try as we have, we know of no basis, presently, to support a continued conclusion that such an increase and thereby deviation from a single salary schedule due to occupational taxes is permissible."
Subsequent to the issuance of OAG 80-29, the 1980 Kentucky General Assembly amended KRS 157.320(12), effective July 15, 1980, to re-insert into the "single salary schedule" definition the phrase, " . . . and such other factors as the state board for elementary and secondary education may approve . . . " As a result of the 1980 amendment to KRS 157.320(12), OAG 80-29 cannot be relied upon for a correct interpretation of the present language of KRS 157.320(12). Rather, OAG 77-427 and OAG 38,840, both of which we affirm in this opinion, once again provide the correct conclusion.
The conclusion which we affirm is that salary schedules may properly be prepared so as to increase the salaries of particular county teachers, teaching within the city, in an amount equal to the occupational tax imposed upon those teachers. Once the salary schedule is adopted by the local school board, it must then be approved by the State Board of Education prior to its implementation.
For the reasons stated above, OAG 80-29 is hereby withdrawn.