Request By:
Representative Vernie McGaha
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Diane Schuler Fleming, Assistant Attorney General
Opinion of the Attorney General
You have requested our opinion regarding whether a school superintendent can promote his son to assistant principal in the same school district. The pertinent facts you presented are that a teacher is employed in the same school system in which his father is the school superintendent. The son wishes to apply for a vacant assistant principal's position within that school system. The concern is that if the son were chosen for the position, this would be a promotion of a relative by a superintendent, in violation of KRS 160.380(2)(e).
Under KRS 160.380(2)(e), there is a general prohibition against relatives of a superintendent working within the same school district. Under subsection (1)(a) of this provision, "relative" is defined as "father, mother, brother, sister, husband, wife, son, daughter, aunt, uncle, son-in-law, and daughter-in-law." There are two exceptions to the general prohibition against relatives of a superintendent working in the same school district. First, the prohibition does not apply to "a relative who is an employee of the school district for at least thirty-six (36) months prior to the superintendent assuming office and who is certified for the position he holds." KRS 160.380(2)(e). The second exception states that the prohibition shall not apply to "a superintendent's spouse who has at least twenty (20) years of service in school systems." Id. Your opinion request notes that we should presume the first exception is applicable. That being presumed, the problematic portion of the statute comes in the last sentence of KRS 160.380(2)(e). It states that "the superintendent shall not promote a relative who continues employment under the exception of this subsection." Id.
The two questions presented in your opinion request in support of allowing the appointment of the relative to assistant principal are:
(1) If the son were to receive the position, would it constitute a promotion as the Assistant Principal position has a lower salary and fewer work days than the son's current teaching position; and
(2) Under KRS 160.345(2)(h), in school systems where a school council is in place, the principal fills vacancies after consulting with the school council. Therefore, is the principal, not the superintendent, promoting the son.
The first question essentially is concerned with what constitutes a promotion. In the context of school law, neither the Kentucky Revised Statutes nor the Department of Education provide a definition of "promotion. " There is no organizational chart common to all Kentucky schools to show the hierarchy of personnel within a school district. Job duties for that of a teacher and assistant principal would also differ depending on the school and school district. Therefore, there is no way to definitively answer what constitutes a promotion without examining the organizational charts and job duties of the specific school district in issue.
Without a clear definition of "promotion, " we must resort to statutory interpretation. Courts have noted that "where there is no specific definition, we must construe the words of the statute within their common usage. " Alliant Health System v. Kentucky Unemployment Insurance Commission, Ky. App. 912 S.W.2d 452, 454 (1995), citing Kentucky Unemployment Insurance Commission v. Jones, Ky.App. 809 S.W.2d 715 (1991). This is echoed in the case of Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997), where the Kentucky Supreme Court held that they "must construe all words and phrases according to the common and approved uses of language."
This issue of defining a promotion was addressed in OAG 92-1. In that opinion we attempted to derive the common usage of the word "promotion. " We opined:
Neither the provisions of the Kentucky 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 in rank of an employee from an employee in one (1) class to a position in another class having a higher minimum salary or carrying a greater scope of discretion and responsibility."
KRS 18A.005(19).
OAG 92-1. While, as noted, this does not constitute a definitive answer in the context of school law, it does indicate the common and approved use of the word "promotion, " the same test a court would use. Note that the common dictionary definition does not require a higher minimum salary in order to constitute a promotion. Likewise, the definition taken from civil service employment law does not require both a higher minimum salary and carrying a greater scope of discretion and responsibility in order for a promotion to have occurred. Instead, these definitions require only one part of the definition to be met in order for the action taken to be considered a promotion. Adopting these definitions as our guide, we believe that either an increase in salary or carrying a greater scope of discretion and responsibility is indicative of a promotion. Provided that the job duties of "assistant principal" in the school district in question involve a greater scope of discretion and responsibility than that of a teacher, moving from the position of teacher to assistant principal would constitute a promotion with or without an increase in salary. Therefore, it is the opinion of this office that, consistent with the applicable job duties, moving from the position of teacher to assistant principal constitutes a promotion.
The second question pertains to what person or authority in the school system actually makes the promotion. The opinion request makes mention of the fact that a school council is in place in this school system and points us to KRS 160.345(2)(h). This provision states:
From a list of applicants submitted by the local superintendent, the principal at the participating school shall select personnel to fill vacancies, after consultation with the school council? Personnel decisions made at the school level under the authority of this subsection shall be binding on the superintendent who completes the hiring process.
KRS 160.345(2)(h). From this language, it could be argued that the principal, not the superintendent, gives the promotion in systems with a school council. In view of the remaining language of KRS 160.380 and KRS 160.370, we believe this interpretation would be incorrect.
Since the implementation of KERA in 1990, the hiring authority within school districts has been dispersed. Prior to KERA, the superintendent and the Board of Education were the hiring authority. Now, personnel decisions require the involvement of the superintendent, the principal, and a School Based Decision-Making Council ("council"), of which the principal is a member. Under 160.345(2)(h), the superintendent supplies the principal and council with a list of applicants for the vacant position. The principal consults with the council and selects personnel to fill those vacancies. This decision is then delivered to the superintendent who completes the hiring process. While this system has placed greater power in the principal and council when making personnel decisions, the superintendent remains the one who ultimately "promotes" employees. This is indicated by the language of KRS 160.380(2)(a) which states "all appointments, promotions, and transfers of principals, supervisors, teachers, and other public school employees shall be made only by the superintendent of schools, who shall notify the board of the action taken." Id. Subsection (2)(e) of KRS 160.380 also provides evidence that the legislators intended the ultimate authority to promote to remain with the superintendent. This subsection states that no relative of a superintendent shall be an employee of the same school district and then provides two exceptions to that rule. The provision then provides that "the superintendent shall not promote any relative who continues employment under an exception to this subsection." KRS 160.380(2)(e). This implicitly indicates that it is the superintendent who promotes.
These statutes were interpreted by the Kentucky Supreme Court in the case of Chapman v. Gorman, Ky., 839 S.W.2d 232 (1992). In this case, the appellants challenged the antinepotism statutes included in KERA. In holding that the antinepotism statutes were constitutional, the Court stated:
New provisions of KERA serve to legislatively eliminate areas which were once fertile ground for favoritism and/or nepotism to take root. KRS 160.370 removes direct responsibility for the "hiring and dismissal of all personnel in the [school] district" from the school board, giving such power to the superintendent. Similarly, KRS 160.380(2)(a) provides that "all appointments, promotions and transfers of principals, supervisors, teachers, and other public school employees shall be made only by the superintendent of schools ."
Id. at 235. In interpreting both statutes, the Supreme Court notes that it is ultimately the superintendent who is responsible for hiring and promoting personnel in the school district. We acknowledge that the superintendent is not alone in the decision-making process of filling vacancies. It has now become a three-tiered process involving the superintendent, principal, and members of the council. However, as noted in KRS 160.345(2)(h), it is the superintendent who "completes the hiring process."
Your request cites OAG 95-10 and OAG 92-131 in which we have addressed hiring issues under KERA. OAG 95-10, in relevant part, pertains to the names of applicants which a superintendent must provide to the principal and council for the purpose of filling vacancies. This opinion does not require the superintendent to provide the principal and council with a list containing the names of all legally qualified applicants. It only requires that the applicants actually recommended by the superintendent meet the minimum legal requirements to serve in the position. As stated in OAG 95-10:
The superintendent may initially use discretion in providing the school with names of applicants whose qualifications meet the needs of the school? Thus, the superintendent could provide the school with a list of 10 applicants ranked in preferred order, a list of 5 applicants with no ranking, or a list of 50 applicants? We emphasize at this point that all applications given to the school by the superintendent must meet the minimum legal qualifications provided by the state law and board policies.
Based on this opinion, even if the superintendent's son met all the educational and legal requirements so as to be qualified for the position of assistant principal, the superintendent would not be required to include his son's name on the initial list of qualified applicants. Under KRS 160.345(2)(h), the superintendent need only supply additional names if a request is made by the principal and council.
OAG 92-131 also addresses the issue of selecting school personnel. To the extent that we opined that the principal retains the final hiring authority, that was limited to the context of the interaction between the principal and the council. That opinion was addressing the issue of how "consultation" was to be interpreted in what is now KRS 160.345(2)(h). One interpretation was that, at the stage where the principal and council consult before selecting personnel to fill vacancies, "consultation" implied that it was the council that had the final decision. A second interpretation was that it was the principal who had the final decision. We opined that, as between the council and principal, it was the principal who had the final decision. OAG 92-131 is limited to the interaction between the council and principal and did not address the issue of the superintendent's hiring authority.
Also relevant to this issue is OAG 91-122 which discusses the superintendent's role in hiring school personnel. In this opinion, we interpret KRS 160.380(2)(a) and note that the superintendent's hiring authority is qualified by the involvement of the principal and council. However, as we noted in the preceding paragraph to that statement, under KRS 160.380(2)(a), it is still the superintendent who makes all promotions.
CONCLUSION
It is the opinion of this office that changing from the position of teacher to assistant principal constitutes a promotion, regardless of whether there is a corresponding salary increase. After complying with certain procedural steps, the action necessary to finalize a promotion is taken by a school district superintendent. When making a promotion, a superintendent is prohibited by KRS 160.380(2)(e) from promoting a relative.