Request By:
Honorable Gregory D. Stumbo
Majority Floor Leader
House of Representatives
State Capitol, Room 304
Frankfort, Kentucky 40601Honorable Roger C. Noe
House of Representatives
State Capitol, Room 304
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Ann M. Sheadel, Director, Civil and Evironmental, Law Division
In your letters to our Office you requested an opinion on the interpretation of Section 78(2)(g) of House Bill 940, the Education Reform Act, which amended KRS 160.380(2)(g) to read:
No principal's relative shall be employed in the principal's school, except a relative who is not the principal's spouse and who was employed in the principal's school during the 1989-90 school year. No spouse of a principal shall be employed in the principal's school, except a principal's spouse who was employed in the principal's school during the 1989-90 school year for whom there is no position for which the spouse is certified to fill in another school operated in the district. The provisions of KRS 161.760 shall not apply to any transfer made in order to comply with the provisions of this paragraph.
Your questions concern the application of this statutory provision to a principal's spouse who is employed in the principal's school.
Your first question is whether KRS 160.380(2)(g) applies both to a spouse who is a certified school employee and to a spouse who is a classified school employee. This question stems from the fact that there are two categories of school employees: (1) those who are required by KRS 161.020 to hold certificates of legal qualifications ("certified" employees); and (2) those who are not required to hold such certificates ("classified" employees). KRS 161.011.
As written, the requirements of the first sentence of KRS 160.380(2)(g) apply to all school employees, whether the employees are certified or classified. That sentence makes no distinction between certified and classified employees; it requires that no principal's relative be employed in the principal's school, with one narrow exception carved out for those relatives who are not the principal's spouse and who were employed in the principal's school during the 1989-90 school year.
The second sentence of KRS 160.380(2)(g) is the portion of lthis provision that deals specifically with spouses of principals. Under the rules of statutory construction, a specific provision of a statute modifies and controls a general provision of a statute. Anderson v. Mills, 664 F.2d 600 (6th Cir. 1981). Accordingly, this specific second sentence modifies the general first sentence as far as the application of the statute to spouses is concerned.
The general language of the first phrase of this sentence, "No spouse of a principal shall be employed in the principal's school," makes no distinction between certified and classified employees. The second phrase of this sentence, however, uses the word "certified" when it creates a narrow exception to the general first phrase of the sentence and allows "a principal's spouse who was employed in the principal's school during the 1989-90 school year for whom there is no position for which the spouse is certified to fill in another school operated in the district" to remain employed in the principal's school.
There are two suggested interpretations of this language. The first suggestion is that the word "certified" in the exception indicates that the exception refers to employees who are certified to fill some position and, therefore, thast the exception applies only to certified employees. The second suggestion is that the phrase "for whom there is no position for which the spouse is certified to fill" includes, in addition to certified employees, all classified employees who were employed in the principal's schools during the 1989-90 school year, because there are no postitions for which classified employees are certified to fill.
It is our opinion that the use of the word "certified" in the language of this exception limits the application of this excption to certified employees. The general purpose of the second sentnce of KRS 160.380(2)(g) is to prohibit a spouse of a principal from being employed in the principal's school. This purpose is exhibited by the fact that principal's spouses are not included in the first sentence of the statute dealing with relatives in general, but are specifically addressed in a more restrictive second sentence. In keeping with that purpose, it is our opinion that the exception should be read narrowly. The phrase "for which the spouse is certified to fill" indicates to us that the spouse must be certified to fill some position in the school district for this exception to apply to the spouse.
This reading of the exception also stems from the fact that classified employees are much easier to transfer to other schools within the school district than are certified employees. It may be impossible to transfer a certified employee to another school due to the specialization of the certification involved and the limited nature of such certified postions in the school district. Classified postitions, however, are usually numerous and usually exist in more than one school in a school district, which means that the difficulties of transferring a classified employee will not be as great as the difficulties of transferring certain certified employees. It is our opinion that the legislature, in writing this exception, intended to protect only those spouses who cannot be transferred to a position in another school due to the nature of the spouse's certification.
Therefore, it is our opinion that the language of the second sentence of KRS 160.380(2)(g) prohibiting a spouse of a principal from being employed in the principal's school applies to both certified and classified employees. The language in that sentence that allows for an exception to this rule, however, applies only to certified employees.
Your second question asks under what conditions a certified or classified employee, who is the spouse of a principal, may work in his or her spouse's school. Because, as noted above, a classified school employee who is a principal's spouse in not included in the statutory exception, there are no conditions under which a classified spouse of a principal may work in his or her spouse's school. On the other hand, a certified school employee who is the principal's spouse may work in his or her spouse's school if: (1) the certified spouse was employed in the principal's school during the 1989-90 school year; and (2) there is no position for which the certified spouse is certified to fill in another school operated in the district.
You specifically ask whether a certified employee who is the principal's spouse may remain in the principal's school if there is no appropriate vacancy in another school operated in the district. The exception that allows a certified spouse of a principal to work in the principal's school is written in terms of a position in another school; it is not written in terms of a vacancy in another school. In view of the facts that the word "vacancy" is specifically defined in apragraph (1)(b) of this statute and that the legislature chose to use the word position rather than the word vacancy in describing this exceptiion, it is our opinion that the application of this exception depends only on wether a position exists in another school, not on wether a vacancy exists in another school. If an appropriate position exists in another school in the district, then the certified spouse must be transferred to that position; an individual occuping the position that is needed for the principal's spouse must also be transferred to accommodate the transfer fo the principal's spouse.