Request By:
Hon. J. Gary Bale
General Counsel
Office of Legal Services
Department of Education
Capital Plaza Tower
500 Mero Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter, you requested an opinion from this Office on several questions concerning the interpretation and application of KRS 160.380:
I. a. "[A]ssuming the creation of a new 'position' or the resignation, dismissal, nonrenewal, transfer, or death of the immediately previous occupant, do paid extra-duty or extra-curricular assignments have to be posted? "
b. "[I]f coaches' positions definitely have to be advertised, is there any basis to distinguish between coaching assignments and other extra duty assignments; . . .?"
c. "[If] all extra-duty assignments have to be posted locally, is there any basis for not notifying the Department of Education on positions not anticipated to be filled from outside the school district? "
II. "[Is] a 'vacancy' ever created under KRS 160.380 when a superintendent merely concurrently shifts, or transfers, existing personnel between, or among, two or more existing positions?"
III. "[C]an a local superintendent ever transfer existing staff into an admitted opening without posting that first opening? In other words, assume that Teacher 1 resigns his or her position and the superintendent desires to transfer Teacher 2 into that position and Teacher 3 into Teacher 2's position; can the superintendent do such without posting and then merely advertise the final vacancy created in Teacher 3's position, or must he at least utilize his then-current thinking at the time of the resignation and concurrently advertise actual and proposed vacancies in the positions of teachers 1, 2, and 3.
In answer to your first question, it is the Opinion of this Office that, generally, paid extra-duty or extra curricular assignments do not have to be posted in accordance with KRS 160.380. That statute defines "vacancy" and sets forth procedures to be followed in filling positions and vacancies:
(1)(b) 'Vacancy' shall mean any certified position opening created by the resignation, dismissal, nonrenewal of contract, transfer, or death of a certified staff member of a local school district, or a new position created in a local school district for which certification is required.
(2)(a) All appointments, promotions and transfers of principals, supervisors, teachers, and other public school employees shall be made only by the superintendent of schools, who shall notify the board of the action taken. All employees of the local district shall have the qualifications prescribed by law and by the administrative regulations of the State Board for Elementary and Secondary Education and of the employing board. Supervisors, principals, teachers and other employees may be appointed by the superintendent for any school year at any time after February 1 preceding the beginning of the school year.
(b) When a vacancy occurs in a local school district, the superintendent shall notify the chief state school officer thirty (30) days before the position shall be filled. The chief state school officer shall keep a registry of local district vacancies which shall be made available to the public. The local school district shall post position openings in the local board office for public viewing.
(c) When a vacancy needs to be filled in less than thirty (30) days' time to prevent disruption of necessary instructional or support services of the school district, the superintendent may seek a waiver from the chief state school officer. If the waiver is approved, the appointment shall not be made until the person recommended for the position has been approved by the chief state school officer . . .
As you pointed out in your letter, extra-duty or extra-curricular assignments are additional duties assigned to a teacher or administrator that generate additional pay. You provided the examples of athletic coaches, yearbook sponsors, cheerleader coaches and club sponsors. The extra duties are not defined as belonging to separate positions in the sense that additional personnel must be hired. 702 KAR 7:090, which does not expire until April 5, 1992, supports this view. Section (1) states, in part:
[H]ead coaches and assistant coaches of interscholastic athletic teams and coaches of cheerleading squads representing the common schools shall be certified teachers and members of their regular school faculties. They shall be duly employed by their respective boards of education, and their entire salaries shall be paid by such board.
When a local board of education is unable to staff a head or assistant coach position with a qualified or certified member of the faculty, then the regulation allows the board to hire an applicant who holds provisional or standard teaching certificates. 702 KAR 7:090 Section 2(1).
Therefore, in answer to your first question, it is the Opinion of this Office that when extra duties are merely additional assignments, posting of those assignments is not required under the provisions of KRS 160.380(2)(a)-(c). However, when a full-time position is created or becomes vacant, to the extent that extra-duty or extra-curricular assignments are considered to be attached to the full-time new or vacant position, then the extra-duty or extra-curricular assignments would be posted as part of the new or vacant full-time position. Also, to the extent that a separate position is created for the purpose of hiring an individual to provide duties which cannot be carried out by a full-time member of the faculty, then the extra-duty or extra-curricular assignments would be posted as part of that position. Of course, in the spirit of the Kentucky Education Reform Act, the superintendent may post extra-duty or extra-curricular assignments which are to be assigned to the incumbent of a full-time position to ensure that anyone who is interested in being considered for the assignments may apply.
Second, when positions are to be posted, you ask if coaches' positions must be handled differently from other extra-duty or extra-curricular assignments. In answer to your question, as set forth above, the distinction to be made is whether the extra duties are added to a new or vacant full-time position or to a separate position as opposed to whether the extra duties are merely assigned to the incumbent of a full-time position. The same procedure, set forth above, would follow.
Third, you ask whether a "vacancy" (as defined in KRS 160.380(1)(b)) is created when a superintendent concurrently moves members of the staff between, or among two or more existing positions. In answer to your question, employment of teachers is deemed to be employment in the district, not in a particular position or school. KRS 161.760(4). Consequently, assignments of position and school, under certain conditions, do not constitute transfers when those assignments are different from previous assignments of position and school. This position is supported by KRS 161.760. Under subsection (1) of that statute, the superintendent is to give notice of assignment no later than July 1, each year, to every teacher holding a valid contract for the upcoming school year. Every teacher has until July 15 to notify the superintendent if he does not accept the assignment. KRS 161.760(2) states:
Transfer or change in appointment of teachers after July 15 shall be made only to fill vacancies created by illness, death, or resignations; to reduce or increase personnel because of a shift in school population; to make personnel adjustments after consolidation or merger; or to assign personnel according to their certification pursuant to KRS 161.010 to 161.120 provided, in the latter instance, that the teacher was appointed to a position outside his or her field of certification in the previous year.
(Emphasis added.) Therefore, a superintendent may change assignments of personnel prior to July 16 without creating "vacancies" as defined by KRS 160.380(1)(b). After July 15, when positions are occupied by personnel as assigned by the superintendent, and when certified position openings occur due to resignation, dismissal, transfer, death, non-renewal of contract, or creation of new positions, those openings constitute "vacancies" under KRS 160.180(1)(b). Any other conclusion would negate the meaning of KRS 160.760(4) that employment is deemed to be employment in the district.
Finally, you ask whether a superintendent may transfer a staff member into an opening without first posting that opening. In the example that you provided in your letter, a superintendent contemplates filling an opening created by resignation by transferring another teacher into that position; he contemplates filling the second opening by transferring another teacher into the second position, and contemplates advertising the third opening for which he has no specific hiring plan. It is the Opinion of this Office that it is necessary to post each vacancy as it occurs after July 15 of each school year. The mandate of KRS 160.380(1)(b) through (2)(d) is clear that openings created after July 15 constitute vacancies subject to posting, position by position, in accordance with the provisions of the statute.