Request By:
Dr. Thomas C. Boysen
Commissioner of Education
Kentucky Department of Education
Capital Plaza Tower
500 Mero Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Chris Gorman, Attorney General; V. Lynne Schroering, Assistant Attorney General
You have requested an opinion from this office interpreting KRS 158.6455, 158.782, and 161.790 on the implementation of supervision of "schools in crisis" by "distinguished educatiors." You raise seven questions which we will address in the order presented.
1. KRS 158.6455(5) provides that when a school is determined to be a 'school in crisis, ' the full-time and part-time certified staff of that school shall be placed on probation. However, teachers to be dismissed at a 'school in crisis' upon recommendation of the Distinguished Educator shall be notified pursuant to KRS 161.790, the teacher termination statute, in accordance with KRS 158.6455(5)(d). By being placed on 'probation' does this mean that the employees to be terminated at a 'school in crisis' do not have to be given 'cause' for their termination nor a right of appeal?
It is our opinion that teachers dismissed upon recommendation of a distinguished educator continue to have a statutory right to be given cause for their dismissal and a right of appeal. KRS 158.6455(5)(d) and KRS 161.790(3). Under the language of KRS 161.790, teachers retain the right to an individual determination of competence and compliance with school laws. The fact that the teachers are evaluated by the distinguished educator does not change the fact that, ultimately, dismissal occurs under KRS 161.790 for the reasons set forth therein. We believe that termination fo a teacher who is placed on probation under the criteria of KRS 158.6455(5) constitutes termination for cause under KRS 161.790, and accordingly invokes a right of appeal.
House Bill 940 reshaped the statutory standards on curriculum and provided for the Council on School Performance Standards to frame goals for the common schools on the basis of measurable outcomes for student achievement. KRS 158.6451. The State Board for Elementary and Secondary Education is to promulgate regulations to establish rewards and sanctions for schools, based on their success or failure in that effort. Success of each school is to be determined by measuring the school's improvement in itys proportion of successful students, based on the outcome goals. KRS 158.6455(1). A school is defined to be "in crisis" by declaration of the State Board for Elementary and Secondary Education when "the proportion of successful students declines by five percent (5%) or more . . . ." KRS 158.6455(5). A school may also be treated as a "school in crisis" when a school in which the proportion of successful students declines by less than five percent after two years does not meet its original threshold after two more years. KRS 158.6455(4).
Following the State Board's declaration that a school is "in crisis, " the full-time and part-time members of the certified staff are automatically to be placed on probation. KRS 158.6455(5)(a). This occurs before any determination is made as to whether any particular teacher shall be dismissed, retained, or transferred. Id . Once assigned to work with the school, the Kentucky Distinguished Educator is required, every six months, to evaluate the certified staff, and to make recommendations to the superintendent regarding continued employment. KRS 158.6455(5)(d). Under KRS 158.6455(5)(d), teachers who are terminated are to be notified as set forth in KRS 161.790, the teacher termination of contract provision.
KRS 161.790(1)(a) - (d) provide that the contract of a teacher may be terminated for insubordination, immorality, disability, and [i]nefficiency, incompetency, or neglect of duty, when a written statement identifying the problems or difficulties has been furnished the teacher or teachers involved." KRS 161.790(1)(d). An exception to the procedural notice requirement allows a distinguished educator to bring charges against a teacher for termination based on violations of KRS 161.790(1)(a) and (d), without supporting the charges with "a written record of teacher performance by the superintendent, principal, or other supervisory personnel of the district . . . ." KRS 161.790(2).
Nevertheless, the language of KRS 161.790(3) which addresses the conditions under which a contract may be terminated states:
No contract shall be terminated except upon notification of the board by the superintendent. Prior to notification of the board, the superintendent shall furnish the teacher with a written statement specifying in detail the charge against the teacher. The teacher may within ten (10) days after receiving the charge notify the chief state school officer and the superintendent of his intention to answer the charge, and upon failure of the teacher to give notice within ten (10) days, the dismissal shall be final.
(Emphasis added.) Hence, while the distinguished educator does not have the immediate responsibility to notify the teacher of the basis of a decision to dismiss the teacher, ultimately the superintendent must furnish the teacher with a written statement that details the charges prior to notification of the board.
"When two statutes concern the same subject matter, one generally and the other specifically, the specific statute prevails."
Kampschaefer v. Com. ex rel. Kampschaefer, Ky.App., 746 S.W.2d 567, 568 (1988), reaffirming
Land v. Newsome, Ky., 614 S.W.2d 948, 949 (1981). While KRS 158.6455 sets the standards on steps to be taken when a distinguished educator supervises a school in crisis, KRS 161.790 more specifically addresses procedural requirements to be followed when termination of a teacher's contract occurs. Accordingly, the provisions of KRS 161.790 prevail, and teachers who are dismissed upon recommendation of a distinguished educator to the superintendent retain the right to be dismissed only for cause, despite the exception regarding the notification by the distinguished educator.
2. In light of KRS 161.790(2), is there any kind of documentation that would be necessary when the Distinguished Educator makes a dismissal or transfer recommendation to the superintendent?
When a distinguished educator makes a dismissal recommendation to the superintendent pursuant to KRS 158.6455, that recommendation is binding on the superintendent. KRS 158.6455(5)(d). That recommendation is based on an individual evaluation of the teacher by the distinguished educator after a minimum of six months of evaluation. Id. In view of the fact that the termination is for cause, based on an evaluation of the teacher, we conclude that some documentation or evidence is required.
While KRS 161.790(2) states that charges may be brought against a teacher without a written statement from the distinguished educator identifying the problems to the teacher when the recommendation is brought pursuant to KRS 158.6455(5)(d), the distinguished educator, on recommendation, obtains information on competency, efficiency, and neglect of duty that results in possible transfer or dismissal. When the recommendation results in a decision to dismiss a tenured teacher, the requirements of KRS 161.790(3) - (6), that no contract may be terminated except upon written notice and a right to a hearing, continue to apply.
3. What action should a superintendent take upon receiving a recommendation from a Distinguished Educator to dismiss a certified staff member?
Under KRS 158.6455(5)(d), a recommendation of dismissal of a certified staff member from a distinguished educator is binding on the superintendent. Upon receiving the recommendation, the superintendent is required to "notify the staff member pursuant to KRS 161.790." Id . The requirements of KRS 161.790(3) include a written statement from the superintendent to the teacher detailing any charges concerning the intent to dismiss prior to the notification of the board. Accordingly, the superintendent should be guided by the procedures set forth in KRS 161.790(3) - (6).
4. What should a superintendent do with a transfer recommendation from a Distinguished Educator if the transfer of another teacher to that building is not feasible and no vacancy apparently exists for the person that is being transferred?
Under KRS 158.6455(5)(d), only recommendations of dismissal from a distinguished educator to a superintendent are binding. Recommendations for transfer must conform to bargained contracts that are in effect between the school district and employees. Id . Accordingly, the superintendent has discretion, when recommendations other than dismissal are made, to take such actions as are feasible, given the limitations of bargained contracts and of available vacancies.
5. Should a tribunal be appointed under KRS 161.790 upon a dismissal recommendation from a Kentucky Distinguished Educator?
It is the opinion of this office that a tribunal is required to be appointed under KRS 161.790(4) upon receipt of the teacher's notice of intention to answer the charge.
6. What authority, if any, does a Kentucky Distinguished Educator have with regard to non-certified or classified staff in a school or district?
The superintendent has ultimate authority over personnel decisions affrecting non-certified or classified staff in the school district. KRS 160.380(2)(a). Nevertheless, principals and school councils share responsibility over certain personnel decisions related to classified employees. When a school is in crisis, a distinguished educator will be assigned to carry out the duties as described in KRS 158.782. KRS 158.6455(5)(d). "The educator shall have the authority to make decisions previously made by the school staff. " KRS 158.782(1)(c)1. Therefore, to the extent that the school staff play a role in assisting the superintendent with personnel decisions involving classified employees, e.g . as provided in KRS 160.345(2)(g) and (i), the distinguished educator may assume the school staff's authority over the classified employees during his service to the school.
7. In KRS 158.782(1)(c)(1), the Distinguished Educator is provided the authority to make decisions previously made by the school staff when accepting an assignment in a 'school in crisis. ' It appears that this provision provides for the Distinguished Educator to have authority over any staff member or the school principal. Does this provision also grant the Distinguished Educator authority to override a decision of a school council where there is School Based Decision Making as well as authority to override a decision of the local superintendent or the school board regarding the operation of a school?
The distinguished educator has authority to override decisions of the school staff. KRS 158.782(1)(c)1. The distinguished educator also has authority to override decisions of the local superintendent when recommending dismissal of certified personnel. KRS 158.6455(5)(d).
We cannot answer your general question as to whether the distinguished educator may override all decisions of the school council, local board and the superintendent regarding the operation of a school since the inquiry is too broad. The authority of the distinguished educator to override school decisions should be addressed in a fact-specific question or in the form of regulations propounded pursuant to KRS 158.6455 and KRS 158.782.