[1994/oagheade.htm]

OAG 94-51

July 29, 1994

Subject: School-based decision making

Written by: Lynne Schroering

Requested by: Brenda Stuart

Syllabus: A school board may not adopt a policy which allows a school to repeal school-based decision making. A school which desires to opt out of SBDM must follow the requirements of KRS 160.345(5).

OAGs cited:

Statutes construed: KRS 160.345(5)

OPINION OF THE ATTORNEY GENERAL

The following question has been presented:

Can a school which has adopted school-based decision making (SBDM) vote to repeal SBDM?

It is the opinion of the Attorney General that a local school board policy which allows the teachers to vote to repeal school-based decision making is not authorized pursuant to KRS 160.345(5) since the legislature has already determined the criteria a school must follow in order to be exempt from SBDM.

The specific board policy in question allows the teachers to vote to repeal school-based decision making as follows:

Repeal

Petition Until such time as the statutes require all schools to adopt SBDM, teachers of a school who no longer wish to remain under SBDM shall present a written petition to the Principal, signed by a minimum of twenty- five percent (25%) of the teachers, indicating their desire for a vote on the matter.

Scheduling On receiving the petition the Principal shall set the date, time and place of a meeting for the purpose of voting on repealing SBDM. This meeting shall be held not less than five (5) and not more than ten (10) school days from the Principal's receipt of the petition.

Notice Notice of the meeting shall be provided to all teachers assigned to the school at least five (5) days in advance of the meeting.

Meeting The Principal shall chair the meeting at which the vote is taken. Voting shall be by secret ballot. Ballots shall offer teachers the opportunity to vote for or against repealing SBDM. The Principal and one teacher chosen by the faculty shall count the ballots and announce the results at the conclusion of the meeting. The Principal shall forward results of the vote to the Superintendent and the Board.

A vote of the majority of the teacher membership shall be required to repeal SBDM.

A vote to repeal SBDM shall be held not more than once each semester.

References: KRS 158.6455, KRS 160.345

It is our opinion that the school board does not have authority to enact a policy which allows the school faculty to repeal school-based decision making except as provided in KRS 160.345(5). We shall explain our reasoning. In 1990 the Kentucky General Assembly revamped the entire public school system. The legislature provided as a cornerstone of the school structure that each school shall implement school-based decision making by July 1, 1996. KRS 160.345(5). This particular subsection not only mandates SBDM in all schools by 1996 but also provides that the only method for a school to "repeal" or opt out of SBDM is if the school exceeds its threshold level and the State Board for Elementary and Secondary Education grants the exemption. KRS 160.345(5) provides:

After July 13, 1990, any school in which two-thirds (2/3) of the faculty vote to implement school-based decision making shall do so. By June 30, 1991, each local board shall submit to the chief state school officer the name of at least one (1) school which shall implement school-based decision making the following school year. The board shall select a school in which two-thirds (2/3) of the faculty vote to implement school-based decision making. If no school in the district votes to implement school-based decision making, the local board shall designate one (1) school of its choice. All schools shall implement school-based decision making by July 1, 1996, in accordance with this section and with the policy adopted by the local board pursuant to this section. Upon a favorable vote of a majority of the faculty at the school, a school performing above its threshold level requirement as determined by the Department of Education pursuant to KRS 158.6455 may apply to the State Board for Elementary and Secondary Education for exemption from the requirement to implement school-based decision making, and the state board shall grant the exemption. Notwithstanding the provisions of this section, a local school district shall not be required to implement school-based decision making if the local school district contains only one (1) school.

It is a general rule of statutory construction that the inclusion of one thing is the exclusion of another. Butgin v. Forbes, Ky., 169 S.W.2d 321, 325 (1943). When certain acts are specified in the law, then one may infer an intention to exclude all others from its operation.

In applying this rule of statutory construction to the issue before us, we believe that the General Assembly has provided the exception to following school-based decision making in KRS 160.345(5). A school which has adopted school-based decision making may only opt out of SBDM if the school exceeds its threshold level, the majority of the faculty desire to be exempt and if the State Board for Elementary and Secondary Education grants the exemption. KRS 160.345(5).

It has been argued that the board policy is permissible since schools do not have to implement SBDM until July 1, 1996. We acknowledge that KRS 160.345(5) does not require all schools to enact SBDM until 1996, although we point out that each district was required to have one school with SBDM by school year 1992-93. We believe at the time the teachers vote to implement school-based decision making that a school must follow the requirements of KRS 160.345. Schools are not required to implement SBDM until 1996; however, once the decision is made then the schools or school district is bound by the dictates of KRS 160.345. Accordingly, the school district must follow the statutory method of opting out of SBDM as allowed pursuant to KRS 160.345(5) and may not enact a policy allowing for repeal of SBDM in a method not contemplated by statute.

CHRIS GORMAN

ATTORNEY GENERAL

Lynne Schroering

Assistant Attorney General