Request By:
The Honorable Roger C. Noe
State Representative
House of Representatives
111 Third Street
Harlan, Kentucky 40831
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
You recently asked this Office for an opinion on the following situation: The 1990 General Assembly ordered the Board of Directors of the Kentucky Higher Education Assistance Authority to promulgate administrative regulations in order to consolidate the Math/ Science Incentive Loan Program and Teacher Scholarship Program set forth in KRS 164.768 and .770, respectively. The 1990-92 Budget Memorandum, on page 203, states that the regulations should provide for "standardized eligibility criteria, award size and other benefits available to recipients to help meet the shortage of teachers in additional critical areas." Each of the two statutes requires that the Kentucky Higher Education Assistance Authority shall promulgate regulations to administer the statute. Previously the regulations promulgated for each statute consistently required, in the definition of "qualified teaching service," that in order to qualify for student loans which would be converted to interest free scholarships, the recipients must render service as certified teachers "in a public school." 11 KAR 7:010, and 11 KAR 8:010. On May 21, 1990, the Kentucky Higher Education Assistance Authority promulgated 11 KAR 8:030E by emergency, on teacher scholarships under both programs, and provided that persons who render a service as certified teachers in the Commonwealth " in a school accredited by the Commonwealth, located in Kentucky " will be eligible to have their loans converted to interest free scholarships, thereby cancelling any amount owed by the recipients. 11 KAR 8:030E Section 1(3). [Emphasis added.]
With regard to the change in the definition of "qualified teaching service," you request an opinion on:
1. whether the board has exceeded its authority by expanding "qualified teaching service" to include service in accredited nonpublic schools.
2. whether it is constitutional to allow loan recipients to have their loans converted to interest free scholarships that need not be repaid when the recipients teach in nonpublic schools in view of the fact that the loans come from public funds.
KRS 164.744 states:
The purpose of the Kentucky higher education assistance authority shall be to improve the higher education opportunities of persons who are attending or planning to attend eligible institutions. Such purpose is hereby declared to be a public purpose for which public money may be spent.
In recognition of the role that the Kentucky Higher Education Assistance Authority has in making opportunities available to individuals who plan to attend eligible institutions, the General Assembly gave the Authority the responsibility of promulgating regulations to administer the student loan statutes. Nevertheless, the KHEAA may only administer that over which it has authority.
KRS 164.768 states in pertinent part:
(1) There are critical shortages of teachers in the mathematics and science fields in grade seven (7) through twelve (12). It is the intention of the general assembly to attract and retain qualified teachers to those fields by awarding incentive scholarships to persons declaring an intention to serve in the mathematics and science fields.
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(5) The loans of persons who actually render service as certified teachers in the Commonwealth . . . shall be converted to interest free scholarships.
KRS 164.770(1) states:
It is the intent of the General Assembly to attract and encourage the most academically talented students to become teachers and render service in the public schools of the Commonwealth.
[Emphasis added.] While KRS 164.768 (addressing teachers of mathematics and science) does not expressly mention that service of persons who receive the educational loans is to be in public schools, clearly the General Assembly only has authority to levy taxes and appropriate their use for public purposes. Section 171, Kentucky Constitution. Moreover, no sum may be raised or collected for education other than in public schools unless the matter is first submitted to the voters and approval is obtained by the majority. Section 184, Kentucky Constitution. This office has previously noted that payment to an individual who is not performing a public service may not be regarded as an expenditure for a public purpose. Therefore, such a payment would be unconsitutional. OAG 68-237. Moreover, the courts have held that school funds cannot be expended for payment to teachers who are not employed under the supervision of officers of the common schools. Underwood v. Wood, 93 Ky. 177, 19 SW 405 (1892).
It is the opinion of this office that KRS 164.768 and 164.770 authorize scholarships for teachers in the public schools, within the limitations set forth in the Kentucky Constitution. Therefore, the Kentucky Higher Education Assistance Authority is necessarily limited to promulgating regulations consistent with that mandate.
Prior to May 21, 1990, the Kentucky Higher Education Assistance Authority did promulgate regulations consistent with its statutory authority. As of May 21, 1990, the Authority promulgated a regulation that exceeded its statutory authority, 11 KAR 8:030E. By defining, therein, "qualified teaching service" as "teaching . . . in a school accredited by the Commonwealth, located in Kentucky," the Authority enabled recipients of loans under KRS 164.768 and .770 to have those loans convert to interest free scholarships that need not be repaid when the recipients provide services as certified teachers in nonpublic schools as well as in public schools.
Therefore, in answer to your first question, the Board has exceeded its enabling authority by promulgating a regulation that violates the requirement of KRS 164.770(1) that teachers render services in the public schools and by violating the intent of KRS 164.768 to provide for critical shortages of teachers in math and science fields in schools in the Commonwealth, those necessarily being public schools by nature of the constitutional requirements.
In answer to your second question, the regulation, 11 KAR 8:030E, is unconstitutional in that it provides for loan recipients to teach in nonpublic schools which is not a public purpose under Section 171 of the Constitution. At a minimum, in order for any sum raised and collected for education to be extended for any purpose other than for common schools, the question must first be submitted to the legal voters, under Section 184 of the Kentucky Constitution.