Request By:
Mr. David L. Keller
Executive Director
Kentucky School Boards Association
Route #3, Box 96A
Englewood Office Park
Frankfort, Kentucky 40601John S. Hoffman, Esq.
Attorney for Henderson
County Board of Education
Sheffer, Hoffman, Neel & Wilson
300 First Street
Henderson, Kentucky 42420Robert E. Ruberg, Esq.
Attorney for Ft. Thomas
Board of Education
O'Hara, Ruberg & Taylor
209 Thomas More Park - Suite C
P.O. Box 17411
Covington, Kentucky 41017-0411John J. Slattery, Jr., Esq.
General Counsel
Kentucky Education Association
401 Capitol Avenue
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
Recently, each of you has written our office requesting an opinion regarding House Bill 225, which was enacted by the 1986 Kentucky General Assembly. This new law requires the state board of education, each local board of education, and each child care center to submit a request to the Justice Cabinet for a criminal records check of all job applicants before the applicants may be employed. Any applicant who has been convicted of a sex crime cannot be employed in any position which has supervisory or disciplinary power over a minor. Other sections of H.B. 225 also apply to any applicant seeking to provide foster care home services to a minor.
Your letters, taken in combination, ask several questions which involve legal interpretation of H.B. 225. However, running consistently throughout each letter, in one form or another, are the following two questions:
1. Does this Act apply to both classified and certified personnel who have supervisory or disciplinary power over minors and who are employed prior to July 15, 1986? In other words, does this Act require records checks of current employees?
2. Must there be a records check on an employee every time a contract for a new year is given?
Before going further, we point out that the request for an opinion by Mr. Slattery included several issues relating to the constitutionality of H.B. 225. Because our conclusion is in the affirmative in response to Mr. Slattery's inquiry as to whether H.B. 225 is unconstitutional under Section 51 of the Kentucky Constitution, the above questions, as well as most of the other questions presented in your inquiries, are moot. In the following discussion, we will present our rationale as to why we consider part of H.B. 225 to be unconstitutional.
The official title of H.B. 225 is: "AN ACT relating to day care centers and foster homes serving minors." No where in the title is there mention of the applicability of the Bill to the state board of education, local boards of education, or to applicants for employment with those entities. Apparently, when the original version of H.B. 225 was replaced by the House Committee Substitute of 225, which for the first time enlarged the scope of the Bill's applicability to include the state board of education and local boards of education, the title was not also amended.
Section 51 of the Kentucky Constitution provides that no law enacted by the General Assembly shall relate to more than one subject, and that subject shall be expressed in the title. The purpose of this provision is to enable those reading the title of an act to get a general idea of what it contains. See, Farris v. Shoppers Village Liquors, Inc., Ky., 669 S.W.2d 213, 214 (1984).
As stated by the Court in Armstrong v. Collins, Ky., 709 S.W.2d 437 (1986) at page 443:
"The title need only furnish general notification of the general subject in the act. If the title furnishes a 'clue' to the act's contents, it passes constitutional muster. (Citing Talbott v. Laffoon, 257 Ky. 773, 79 S.W.2d 244 (1935))."
Generally, one must ask whether the challenged title of H.B. 225 provides the reader a clue as to the contents of the act. Armstrong, supra, page 444. The title of H.B. 225 - "AN ACT relating to day care centers and foster homes serving minors" - in our opinion does not even provide a clue that it is applicable to state and local school boards and their applicants for employment. As a result, it is our opinion that those provisions of H.B. 225 relating to the state board of education and local boards of education and their employees are unconstitutional under Section 51 of the Kentucky Constitution.
"The remaining sections of the Act are not affected by this ruling." See, Carrigan v. Fiscal Court of Fulton County, 289 Ky. 562, 159 S.W.2d 420 (1942), and Farris, supra at page 214. In other words, the sections of H.B. 225 that are germane to its title should be upheld, and those which are not should be declared void.
As per the principle set out in Carrigan, supra, the sections of H.B. 225 that are not germane to its title and that appear void are as follows:
(1) Section 1 of H.B. 225 (now KRS 17.165) - omit all references to the state board of education and any local board of education of either an independent or county school district.
(2) Section 3 of H.B. 335 (now KRS 17.990(3)) - omit all of KRS 17.990(3)(b), and as to KRS 17.990(3)(c), omit" . . . or any board of education . . ."
Obviously, our duty in issuing an Attorney General Opinion is to always apply the law objectively to the inquiry presented. However, we do want to stress that our conclusion that H.B. 225 is in part unconstitutional is reached with great reluctance, as our office is in strong support of the purpose of the Bill. We believe any effort to minimize the risk that a person with a prior sex crime conviction will be hired by a school district and placed in a position which involves supervisory or disciplinary power over a minor is admirable and should be supported.
Along these lines, while our advisory opinion is that those provisions that make H.B. 225 applicable to schools are unconstitutional, we know of no legal impediment to adoption of a well-drafted school policy by a local school district on this subject that will achieve the same goal. In fact, KRS 17.160, relating to the furnishing of a person's record of convictions involving sex crimes to a potential employer, could be utilized by a school board for this purpose. Additionally, those interested may want to pursue passage by the 1988 Kentucky General Assembly of a constitutionally valid bill which achieves the goals sought by H.B. 225 as to schools.
As stated above, the conclusion that portions of H.B. 225 are constitutionally invalid results in most of your questions being moot. However, the following questions still seem to warrant a response:
1. Assuming H.B. 225 does not require a board of education to seek a criminal records check as to employees who have supervisory or disciplinary power over a minor but who were employed prior to July 15, 1986, would a school board incur any potential liability if, at some future date, such an employee commits a sex crime and it is determined that the employee had an earlier conviction of a similar crime?
2. In the event that a tenured employee agreed to a criminal records check, and it was determined that the individual had an earlier conviction for a sex crime, could that employee's contract be terminated, and if so, when?
3. In the event that a non-tenured employee (including a certified employee) agreed to have a criminal records check, and it was determined that the individual had an earlier conviction of a sex crime, could that employee's contract be terminated, and if so, when?
As to the first of these three questions - whether a school board would incur any liability if an employee commits a sex crime and it is determined that the employee had an earlier conviction for a sex crime - the answer would rest upon general legal principles of negligence. In other words, the potential liability of the school board would revolve around the particular facts of the situation and determinations of credibility by the judge or jury. For example, one would need to consider whether the school board knew or should have known that the employee had an earlier conviction of a similar sex crime. Other relevant inquiries would be the circumstances of the prior offense, as well as how far removed in time was the earlier conviction.
As to the second question, in which it is assumed that a tenured employee has agreed to a criminal records check and as a result it is determined that the individual had an earlier conviction for a sex crime, the issue raised is whether the employee's contract could be terminated, and if so, when. Unfortunately, there is no Kentucky legal precedent to guide us in responding to this question, and we cannot predict the outcome should there be judicial review of this type of case. However, the answer would seem to revolve around a question of degree. In other words, such factors as the following would have to be considered: Was the conviction far removed in time from the beginning of employment? What were the circumstances of the offense? Is there some nexus between the earlier conviction and the present performance of the employee's duties?
In short, the facts in each situation would need to be closely studied in consultation with the local school board's attorney in determining whether it is advisable to pursue termination of the tenured employee's contract via the required due process procedures set out in KRS 161.790.
The last of these three questions presented is the same as the second question, except that this last question applies to non-tenured employees (including certified employees), as opposed to tenured employees. Our discussion in response to the second question above would be equally applicable to this question relating to non-tenured employees. However, as to the non-tenured employee we should make the additional note that such an employee is on a year-to-year contract, and therefore if the prior conviction is discovered late in the school year, it may be advisable for the school board to decide not to rehire the employee in question for the next school year, as opposed to initiating the termination procedures under KRS 161.790. If the earlier conviction is discovered in the fall of the school year, upon review of the particular circumstances it may be determined advisable to pursue termination of the contract of the non-tenured employee through the KRS 161.790 termination procedures. These are merely considerations for a school board in determining the best course of action, given the particular circumstances of a case involving the discovery of an earlier conviction of a sex crime of a non-tenured employee.
Finally, we would like to restate our conclusion as to the main portion of this opinion. It is our opinion that the title of House Bill 225 - "AN ACT relating to day care centers and foster homes serving minors" - does not provide a clue that it is applicable to state and local school boards and their applicants for employment. As a result, those provisions (see KRS 17.165 and KRS 17.990(3)) of House Bill 225 relating to the state board of education and local boards of education and their employees are unconstitutional under Section 51 of the Kentucky Constitution. The remaining sections of H.B. 225 that are germane to its title are not affected by this opinion.