Request By:
Ms. Judy Johnson, President
Fayette County Education Association
East High Street, Suite 106
Lexington, Kentucky 40507
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your letters to this office, you have requested an Opinion of the Attorney General concerning the legality of Fayette County Public Board of Education policy amendments which generally prohibit the use of all tobacco products on school grounds. You ask whether the policy conflicts with KRS 438.050, as applied in several ways. We will address each in turn.
It is the opinion of this office that the Fayette County Public Board of Education policy amendments 03.1327, 03.2327, 09.4232, and 10.5 on use of tobacco by certified personnel, by classified personnel, by students and by visitors do not exceed the authority of the Board under KRS 160.290 to "adopt, and . . . amend . . . rules, regulations, and bylaws for . . . the management of the schools . . . for the qualification and duties of employees and the conduct of pupils." KRS 160.290(2).
The policies in question state, in pertinent part, that:
The use of all tobacco products by certified personnel is prohibited in buildings, grounds or on field trips of the Fayette County Public Schools. The exception to the prohibition is the use of tobacco on school grounds during athletic events or other school events. Tobacco products may not be used in any school building at any time.
KRS. 438.050 states:
Any person, except adult employes of the school system who smoke in a room on the school premises designated by the superintendent or principal for the purpose, who smokes tobacco products in any school building or any part of any building used for school purposes, or upon school grounds, while children are assembled there for lawful purposes, except in areas in secondary schools designated and supervised by the superintendent or principal for the purpose, shall be fined not less than one dollar ($ 1.00) nor more than five dollars ($ 5.00). The exception granted for smoking areas designated by the superintendent or principal shall extend to all schools.
First, in your letter of March 25, 1991, you ask, "[d]oes the statute pass directly to superintendents and principals the authority to designate smoking areas for adult employees in secondary schools?" KRS 438.050 imposes a fine on individuals, with some exceptions, who smoke in school buildings or on school grounds while children are present. While the statute provides an exception under which individuals are not liable, that being when those persons smoke in rooms designated for smoking by the superintendent or principal, the statute in no way mandates that superintendents and principals shall have authority to designate smoking areas. The local board continues to have responsibility for "general control and management of the public schools in its district . . ." and, accordingly, to set the standards for behavior. KRS 160.290(1) Also see KRS 160.290(2).
The other questions that you raise are controlled by the answer set forth above. You ask:
2. Does this authority extend to the principals of other schools? (OAG 81-295)
3. May a Board of Education regulate use of tobacco products by employees only in ways other than smoking? (OAG 81-295)
4. Does the statute forbid smoking of tobacco products at outdoor athletic events? (OAG 81-295)
5. By removing the options of a superintendent or principal to designate a smoking area, does the Fayette County Board of Education policy seek to amend or change KRS 438.050? If such is the case, is this a legal policy?
Authority concerning the use of all tobacco products by employees, students and visitors in school buildings, on school grounds or on field trips rests with the local board of education, not with superintendents and principals, unless that authority is delegated to them by the board. KRS 160.290 and 160.345. KRS 438.059 does not grant authority to superintendents or principals beyond that authority granted to those officials by the Board. KRS 438.050, as currently written, does not forbid smoking of tobacco products at outdoor athletic events, depending on what smoking areas are to be designated in the schools. Therefore, the Fayette County Board of Education policy may permit use of tobacco products at those events.
We note, in passing, that employers may not discriminate against an individual because that individual is a smoker or nonsmoker so long as the individual follows the policy in his work place regarding smoking. KRS 344.040.
You have also asked, in your letter of June 3, 1991, whether board regulations are permissible which set sanctions including dismissal for employees, who violate the policy on use of tobacco products. Under KRS 160.290, the local board of education clearly has authority to set standards for employee behavior and to take disciplinary action, as appropriate. The question that remains in examining the standard is whether the standard is reasonable, and whether the sanctions are reasonable as applied. Ultimately that may be for a court to decide.
In summary, the board has the authority under 160.190 to set policy in this area, and KRS 438.050 is not violated when a local board of education policy precludes use of tobacco products on school grounds.