Request By:
Mr. J. Gary Bale
General Counsel
Department of Education
Capital Plaza Tower
Frankfort, KY 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; By: Patricia Todd Thomas, Assistant Attorney General
As general counsel for the Department of Education, you have requested an opinion from the Office of the Attorney General regarding the Instructional Leader Improvement Program created by KRS 156.101. The program, beginning in 1984, requires each instructional leader 1 to complete 42 hours in an intensive training program which has been approved by the state board of education. Failure to obtain the hours of training within the mandated time period may result in the revocation of the instructional leader's certificate by the state board. Your letter suggests a conflict between the state board's authority to revoke the certificate of an instructional leader found in KRS 156.101 and KRS 161.020(3). That later section reads:
The validity and terms for the renewal of any certificate shall be determined by the laws and regulations in effect at the time the certificate was issued.
Strict interpretation of KRS 161.020(3) would allow any instructional leader who received a certificate prior to July 15, 1984 2 to avoid the requirements of the improvement program. Any such certificated employee in this area could not have their certificate revoked by the state board because KRS 156.101 was not in effect at the time their certificate was issued.
Notwithstanding the apparent legislative intent of KRS 161.020(3) to make the revocation of any certificate contingent upon laws then in force, KRS 156.101 clearly controls revocation of an instructional leader's certificate. This is evident by reviewing the three canons of statutory construction discussed by the Court of Appeals in City of Bowling Green v. Board of Education. of Bowling Green Independent School District, Ky., 443 S.W.2d 243 (1969):
(1) That it is the duty of the court to ascertain the purpose of the General Assembly, and to give effect to the legislative purpose if it can be ascertained; (2) that conflicting Acts should be considered together and harmonized, if possible, so as to give proper effect and meaning to each of them; and (3) that as between legislation of a broad and general nature on the one hand, and legislation dealing minutely with a specific matter on the other hand -- the specific shall prevail over the general.
First, the legislative purpose of the instructional leadership program is clearly set forth in KRS 156.101(1). The state board of education was directed to develop a program which would result in improvement in the quality of performance of principals, assistant principals, supervisors of instruction, guidance counselors or directors of special education. Practically, this prescribed program of improvement could not be effective if it did not supersede the general certificate renewal statute, KRS 161.020(3). The intent of the legislature could not have been to have a program which is to be applied only to those persons who received certificates after 1984, because the effectiveness of the program would be time delayed or perhaps nullified. If no instructional leaders who received certificates before 1984 would be required to comply with the intensive training program of the state board of education, only the minority of instructional leaders would be required to attend the programs. The legislative purpose could not be fulfilled by any other interpretation but that all instructional leaders must attend the program.
This conclusion can be sustained even in light of the principle of statutory construction found in KRS 446.080. That section requires no statute is to be retroactive in effect unless it expressly states it is to be applied in that manner. However, when this general rule was discussed in Taylor v. Asher, Ky., 317 S.W.2d 895 (1958), the court held the retrospective application of a law is not to be given unless the intent is clearly expressed or necessarily implied. In this instance, as discussed above, it is necessarily implied this law must be applied to those persons who received their certificates prior to 1984 to benefit our schools and is, therefore, retroactive.
The second rule of statutory construction also requires that KRS 156.101 controls the renewal of an instructional leader's certificate. The requirement of KRS 161.020(3), that certificates be considered pursuant to the application of the laws which were in effect at the time of the granting of the certificate, is not in harmony with the instructional leadership program. Therefore, KRS 161.020(3) is controlling except when an instructional leader fails to comply with the Instructional Leader Improvement Program. At such time, the state board may exercise its power of revocation granted by KRS 156.101(4).
Lastly, the application of the third rule requires KRS 156.101 controls KRS 160.020. In referring to this rule, the court in City of Bowling Green, supra, quoted Morton v. Auburndale Realty Company, Ky., 340 S.W.2d 445 (1960):
Where two statutes deal with common subject matter, the one dealing with the subject in a minute way will prevail over the general statute. This is especially true where the special act is later in point of time.
At 446, emphasis added.
KRS 156.101 is more specific and was more recently enacted than KRS 161.020. The legislature detailed the powers and duties of the state board of education in implementing the improvement program. The specificity of KRS 156.101 prevails over the general terms of KRS 161.020.
In conclusion, the opinion of the Attorney General is that a certificate of an instructional leader may be revoked for failure to obtain the hours of intensive training required by KRS 156.101. All instructional leaders, including those who received a certificate prior to the effective date of the statute, are required to comply with KRS 156.101.
Footnotes
Footnotes
1 As defined in KRS 156.101(2), an instructional leader is "an employee of the public schools of the Commonwealth of Kentucky holding a valid certificate as a principal, assistant principal, supervisor of instruction, guidance counselor, or director of special education. "
2 KRS 156.101 became effective July 15, 1984.