Request By:
Ms. Diane Holland
Boone County School Board
42 Wallace Avenue
Florence, Kentucky 41042Mr. Kenneth E. Bland
Superintendent
Rowan County Board of Education
121 East Second Street
Morehead, Kentucky 40351Mr. David Barnett
Superintendent
Fleming County Schools
211 West Water Street
Flemingsburg, Kentucky 41041
Opinion
Opinion By: Chris Gorman, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letters to this Office, you have requested an interpretation of KRS 160.380(2)(f) which prohibits the superintendent from promoting a relative (of a school board member or of the superintendent) who may remain employed by the school district under the terms of the subsection. You present three fact patterns.
In the first situation, the husband of a board member has served in the school system for 21 years. The Board member was reelected in November 1990. In March 1991, the board of education initiated construction of a new high school. The husband, who is currently employed as athletic director at a junior high school, would like to apply to teach and to serve as athletic director at the new high school. You ask whether acceptance of a position as teacher and athletic director at the high school would constitute a promotion and be prohibited under KRS 160.380.
In the second situation, on January 2, 1991, a superintendent employed a full time special education teacher who is the daughter of a current school board member. The teacher was first employed in 1987 as a substitute teacher, and continued in that status until January 2, 1991. You ask whether the movement from a position of substitute teacher to a position of special education teacher constitutes a promotion in violation of KRS 160.380(2)(f).
In the third situation presented, you ask whether the Kentucky Education Reform Act prohibits the expansion of responsibilities for a current staff member who is a relative of the superintendent or of a board member. In particular, you ask whether a board member's relative who was hired prior to the election of the board member may be hired to work in the extended school service program in a classified or certified position. You also ask whether relatives are eligible to apply for extra service positions such as coach, or yearbook sponsor.
The restrictions on the hiring of relatives of superintendents and school board members are set forth in KRS 160.380(2)(e) and (f):
(e) Effective July 1, 1991, no relative of a superintendent of schools shall be an employee of the school district. However, this shall not apply to a relative who is an employee of the school district prior to July 13, 1990, and who is certified for the position he holds, as long as the superintendent is holding office on July 1, 1991, and it shall not apply to a superintendent's spouse who has at least twenty (20) years of service in school systems. A superintendent's spouse who is employed under this provision shall not hold a position in which the spouse supervises certified or classified employees. A superintendent's spouse may supervise teacher aides and student teachers. However, the superintendent shall not promote his relative who continues employment under an exception of this subsection.
(f) No superintendent shall employ a relative of a school board member of the district unless on July 13, 1990, the board member's relative is an employee of the district, the board member is holding office, and the relative was not initially hired by the district during the tenure of the board member. A relative employed in 1989-90 and initially hired during the tenure of a board member serving on July 13, 1990, may continue to be employed during the remainder of the board member's term. However, the superintendent shall not promote any relative of a school board member who continues employment under the exception of this subsection.
(Emphasis added.)
This opinion will examine the legal standards governing the categories of employment in question, then will apply the standards to the fact patterns presented. In each situation, we assume that the relatives are employed in the school system under one of the exceptions provided by statute. First, we will address duties and responsibilities of relatives of superintendents. To understand what duties may be assigned, it is important to know what kind of position may be occupied by relatives of superintendents. As we stated in OAG 90-94:
Section 78(2)(e) of House Bill 940 [KRS 160.380] essentially contains two exceptions to the requirement that, as of July 1, 1991, no relative of a superintendent shall be an employee of the school district:
1. The first exception applies to relatives who are employees of the superintendent's school district prior to July 13, 1990, and who are certified for the positions they hold, so long as the superintendent is holding office on July 1, 1991.
2. The second exception applies to spouses who have twenty or more years of service in school systems.
OAG 90-94 at p.3. The terms of the statutory exceptions are mandatory. The first exception encompasses certain certified employees; the second exception encompasses spouses with twenty or more years of service in classified or certified positions in school systems. KRS 160.380(2)(e) expressly prohibits a superintendent's spouse from holding a supervisory position over a certified or classified employees, although the spouse may supervise teacher aides and student teachers. Similarly, KRS 160.180(2)(e) expressly prohibits the superintendent from promoting his relatives.
In determining whether the assumption of an extra service position, such as coach or yearbook sponsor, would be permissible, it is necessary to ascertain whether the duties and responsibilities of a superintendent's spouse entail the supervision of certified or classified employees. If so, assumption of the position by the spouse would be prohibited.
Neither the provisions of the Kentucky Education Reform Act nor Kentucky case law defines "promotion" in the context of school law. Webster's II New Riverside University Dictionary (1988) defines "promotion" as "advancement in responsibility or rank. " In civil service employment law, "'Promotion' means a change of rank of an employee from a position in one (1) class to a position in another class having a higher minimum salary or carrying a greater scope of discretion or responsibility." KRS 18A.005(19). In the context of civil service, all positions are classified by level of duties and each classification of positions is assigned a pay grade in rank order.
In school settings, positions are not similarly classified. The definitions set forth above suggest that a material and permanent change in the level of duties and responsibilities, with a comparable change in compensation, are indicative of promotion. For example, when a teacher becomes an administrator, assumes more responsibility, and receives higher compensation, a promotion has occurred. Similarly, when an administrator moves to central office, assumes more responsibility and receives higher compensation, a promotion has occurred.
Promotions are generally the opposite of demotions. Yet, the education statutes do not provide for formal demotions of teachers, other than for teachers serving in the capacity of administrators. KRS 161.765. A teacher's salary and responsibilities may be reduced upon written notice to the teacher by May 15. KRS 161.750. In fact, employment of teachers is deemed to be employment in the district, not in a particular position or school. KRS 161.760(4). This means that a teacher may be assigned to a position on any level for which certified.
Accordingly, in the first fact pattern presented, it is the opinion of this office that a teacher and athletic director in a junior high school who accepts a position in a high school as teacher and athletic director has not necessarily experienced a promotion; the change may simply be a transfer. Kentucky courts have held that:
[T]he fact that a teacher holds a continuing contract does not prevent the board of education [now, the superintendent] from transferring him from one school to another, or from one class of teaching position to another, where the contract does not expressly specify the school and class of position in which the teacher is to be employed.
Marshall v. Conley, Ky., 258 S.W.2d 911 (1953). The facts of that case involved the transfer of an employee who had served for 15 years in various capacities of teacher and administrator in the high school of the district to the position of teacher at the elementary school. This holding is supported by KRS 161.760(4). Therefore, the mere fact that a teacher and athletic director at a junior high school might assume similar duties at the high school would not, without more information, constitute a promotion.
In the second fact pattern presented, you note that this office has opined that KRS 160.180(2)(i) authorizes a relative (of a board member) who was initially hired by the district prior to the tenure of the board member, and who has remained continuously employed by the district, to remain employed by the district. OAG 90-126. For example, a substitute teacher who continued to teach from 1982 through 1986, when the teacher's brother became a board member, and from 1987 to present as a regular full-time teacher, would be found to have been initially hired prior to the time that the brother became a member of the board. Id. You ask whether the assignment of a regular full-time teaching position as of January 2, 1991, to a relative of a board member constitutes a promotion.
It is the opinion of this office that the assumption of teaching duties in a full-time position does not necessarily constitute a promotion. Substitute teaching may include part-time or full-time duties, similar in nature to the duties assumed in a regular full-time position. The determination of whether or not a promotion has occurred will depend on the facts of the individual case in question. It is important to remember that KRS 161.760(4) indicates that employment of a teacher is with the district, and not in any particular position or in a particular school. Therefore, a teacher's assignment may change, from year to year, without the occurrence of promotion or demotion simply because the teacher occupies a different position or specialty for which he is certified.
In the third fact pattern presented, regarding the expansion of responsibilities for current staff members who are relatives of a board member or of a superintendent, a delineation of level of duties and responsibilities and compensation is appropriate. Extended employment, which we understand to be an additional period in which duties are performed, as in the case of a band director who directs a band camp in the summer, does not constitute a promotion. Additional compensation for an additional period of employment would not, in and of itself, constitute promotion.
It is also useful to consider what may create the perception that a promotion has taken place. A determination might entail examination, not only of the level of duties and responsibilities, but also of the circumstances under which extended employment, or extra-service positions is available to employees.
Extra-service positions involve payment for additional tasks that a teacher assumes, such as coach, or yearbook sponsor. To conclude that any assumption of special tasks within the school would constitute promotion, when the level of duties may not change in a material way, and when the compensation is small, would appear to be unduly burdensome. Whether assumption of an extra-service position constitutes a promotion will require analysis of the level of duties and responsibilities and of the level of compensation, as well, perhaps, of the manner in which such positions are assumed. Therefore, without facts to indicate a material and permanent change in duties, this office must conclude that extra-service positions would not constitute promotions.
The Kentucky Education Reform Act does not offer guidance on the meaning of promotion. Accordingly, while this opinion attempts to provide parameters to be considered, the definition of promotion will ultimately be a matter for the courts to decide.
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