Request By:
Mr. J. Stephen Kirby
Staff Attorney
Kentucky School Boards Association
260 Democrat Drive
Frankfort, Kentucky 40601Mr. Eddie Brown, Superintendent
McCreary County School System
HC 69 Box 24
Stearns, Kentucky 42647
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Carol C. Ullerich, Assistant Attorney General
We are in receipt of your inquiries concerning Section 91 of House Bill 940, which amended KRS 160.440 to state, in pertinent part: "[A] superintendent who serves as secretary to the board shall not receive compensation in addition to that which he receives for serving as superintendent. " You have questioned the impact of this provision on a four-year contract which does not expire until 1992 in which the superintendent is currently receiving additional compensation for performing secretarial functions for the board.
We are of the opinion, the amendment of KRS 160.440 terminates the current contract. A superintendent may no longer be compensated for serving as secretary to a board of education. As explained in W. Haynes, Kentucky Jurisprudence Contracts , 153-54 (1986),
if a contract is valid when made, it can be rendered invalid by a subsequent act of the legislature; however, when such an event occurs, the subsequent statute should be construed in such a way as to avoid impairing the obligation of existing contracts. This does not mean that a contract legal at its inception becomes illegal by subsequent statutory prohibition as to acts done before the enactment of the statute. A subsequent statutory enactment merely terminates the contract and there can be no legal recovery for a subsequent illegal performance , since it is contrary to public policy to permit a party to recover for the performance of his own illegal acts or to benefit by his own wrong. (Emphasis added)
The general rule stated above is gleaned from
Louisville and Nashville Railroad Company v. Crowe, 156 Ky. 27, 160 S.W. 759, 760 (1913) wherein it is stated, it is a general rule of law that where a contract is lawful when made, and a subsequent enactment renders performance of it inlawful, neither party shall be prejudiced, and the contract is at an end."
Henceforth, superintendents may not be paid for secretarial duties performed for the board of education. However, compensation already paid to a superintendent for performance of a pre-existing contract since adoption of the Kentucky Education Reform Act need not be refunded as "there can be no legal recovery for a subsequent illegal performance." Kentucky Jurisprudence Contracts , supra . Thus, amendment of KRS 160.440 terminates a contract between a superintendent and a school board which allows the superintendent to be paid for serving as secretary to the board.