[1995/oagheade.htm]

OAG 95-10

March 23, 1995

Subject: School-Based Decision Making; Hiring

Written By: Lynne Schroering Slone

Requested By: Kevin M. Noland

Syllabus: KRS 160.345(2)(h) requires the superintendent to submit the names of all applicants who comply with minimum legal and school board policy requirements; the superintendent cannot withhold the names of applicants who meet minimum qualifications discussed in this opinion.

OAGs cited: OAG 92-131

Statutes construed: KRS 160.345(2)(h)

OPINION OF THE ATTORNEY GENERAL

In this opinion we provide an interpretation of the term "qualified applicants" which is contained in the last sentence of the school-based decision making hiring statute KRS 160.345(2)(h) which provides:

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. Requests for transfer shall conform to any employer-employee bargained contract which is in effect. If the vacancy to be filled is the position of principal, the school council shall select the new principal from among those persons recommended by the local superintendent. Personnel decisions made at the school level under the authority of this subsection shall be binding on the superintendent who completes the hiring process. The superintendent shall provide additional applicants upon request when qualified applicants are available.

When a position is to be filled in a non-principal position at an SBDM school, there are differences of opinion as to the meaning of "qualified applicants" in the final sentence of KRS 160.345(2)(h).

A dispute has arisen regarding the meaning of "qualified applicants" in KRS 160.345(2)(h). We have been presented with two contrasting interpretations:

One interpretation of "qualified" could be that the applicant meets the basic qualifications for consideration related to the position. This could mean that the applicant has the appropriate certification and has a clear criminal record. If this is the case, then the last sentence in KRS 160.345(2)(h) would require the superintendent to continue to submit additional applicants to the principal and school council upon request until the entire pool of certified applicants with a clear criminal record has been submitted. This would not require the superintendent to submit all of the qualified applicants upon the initial submission, but would require this only if the principal and school council continue to request.

Another interpretation of "qualified" could be that the applicant meets the basic qualifications described above, but also is an applicant that the superintendent recommends or considers qualified based upon other additional considerations. If this is the case, then upon additional requests for additional applicants from the principal and school council, the superintendent would be required to submit only those applicants which meet the minimum requirements of certification and a clear criminal record, as well as any additional criteria for the position established by the superintendent or local board of education, which might include the superintendent's recommendation.

We do not believe that either of these interpretations of the term "qualified applicants" in KRS 160.345(2)(h) accurately reflects the statutory responsibilities of the school board, superintendent, principal, and school council. It is the opinion of the Attorney General that "qualified applicants" means all persons who meet all qualifications set forth by statute, regulations, and school board policies. It is undisputed that a qualified applicant must meet all minimum requirements of certification and have a satisfactory criminal records check. However, there are other legitimate "qualifications" which may be attached to a particular job classification and would impact the list of qualified applicants to be submitted to the school.

A superintendent must review pertinent statutes and regulations to ascertain if an applicant complies with minimum legal qualifications that apply to the particular job classification and which must be met before the person may be employed by the school district. KRS 160.370. The principal and school council should have the security of knowing that all applicants listed by the superintendent meet the minimum legal requirements. Without an actual factual situation before us, it would be pointless to list all relevant Kentucky statutes and regulations which may impact a particular job classification.

Additionally, a school district's personnel policies must be reviewed by the superintendent to ascertain whether there are any qualifications contained in the policies which pertain to a particular position. KRS 160.290, KRS 160.345, KRS 161.011. The local school board's personnel policies may set forth objective criteria required for a particular job classification. KRS 160.290(2) requires the local board of education to adopt policies for the qualifications and duties of employees. KRS 160.345 provides that the local board has a duty to file its personnel policies regarding certified employees. Also, in 1994 the General Assembly clarified the local school board's duties to enact written personnel policies dealing with classified employees. KRS 161.011(6).

While we list the policy making duties of the local board we are well aware of the mandate prohibiting the board from becoming involved in specific personnel decisions. Explicit in KERA and in recent Kentucky cases is a necessary balance between the school board's authority to enact personnel policies and the board's prohibition against influencing the hiring of individual district employees. KRS 160.160(1) and KRS 160.170.

The board of education policies may provide objective criteria affecting the minimum job qualifications for a job classification; however, the superintendent has no legal authority to create similar criteria. The superintendent's role is to effectuate the policies of the board and apply the education laws and regulations of the Commonwealth. KRS 160.370. Thus, the superintendent must assimilate the applicant list, review the applications for consistency with applicable state law and board policy and tender the list of qualified applicants to the school.

Our interpretation of the term "qualified applicants" in KRS 160.345(2)(h) is consistent with Kentucky case law. In the Supreme Court's most recent education case the court stressed that KERA is built upon a framework of decentralization and shared decision-making. In Board of Education of Boone County, Kentucky v. Joan Bushee, et al., 93-SC-980-DG, December 22, 1994, p. 6, the Supreme Court explained:

The essential strategic point of KERA is the decentralization of decision making authority so as to involve all participants in the school system, affording each the opportunity to contribute actively to the educational process. The language of KRS 158.645 overwhelmingly reflects this intention.

KRS 158.645 provides:

The General Assembly recognizes that public education involves shared responsibilities. State government, local communities, parents, students, and school employees must work together to create an efficient public school system. . . . The cooperation of all involved is necessary to assure that desired outcomes are achieved.

KRS 158.645. (emphasis added).

The Kentucky General Assembly has directed that the hiring process at school-based decision making schools must involve shared decision making and input from many individuals closely connected with the school. KERA's more inclusive method of hiring can be traced back to the Rose case which declared Kentucky's past system of common schools as inefficient and unconstitutional. In Rose v. Council for Better Education, Inc., Ky., 790 S.W.2d 186, 193 (1989) the Supreme Court stated "if and where waste and mismanagement exist, including but not limited to improper nepotism, favoritism, and misallocation of school monies, they must be eliminated, through state intervention if necessary."

As a result of the Rose decision the General Assembly developed our current process of hiring SBDM school personnel which involves shared responsibilities, including: the local school board which sets salaries and devises personnel policies; the superintendent who screens candidates for qualifications consistent with state law and board personnel policies and who provides the school with lists of qualified applicants; and the principal who selects the personnel after consultation with the school council. KRS 160.345(2)(h).

The hiring process at an SBDM school would be consistent with the following description. The superintendent may initially use discretion in providing the school with the names of applicants whose qualifications meet the needs of the school. There does not appear to be confusion regarding the superintendent's initial submission of a list of applicants to 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. The superintendent facilitates the hiring process by providing a list of qualified applicants and the principal selects the personnel with the consultation of the school council. (We refer you to OAG 92-131 for an opinion dealing with the duty of the principal to consult with the school council prior to selecting personnel.)

We emphasize at this point that all applications given to the school by the superintendent must meet the minimum legal qualifications provided by state law and board policies.

If requested by the school, the superintendent must continue to supply available applicant names until the field of "qualified" applicants is exhausted. KRS 160.345(2)(h).

When KERA was originally passed in 1990 this statute required that the superintendent recommend a list of applicants to the school. KRS 160.345(2)(i). However, in 1992, the legislature amended the statute deleting the requirement that the superintendent recommend a list of applicants. The SBDM hiring statute now provides that the superintendent submits a list of applicants to the school. Obviously, omitting the superintendent's recommendation broadens the list of applicants whose names must be submitted to the school for employment consideration. The superintendent's recommendation cannot be viewed as a qualification for employment of non-principal positions.

In conclusion, if the school continues to request more names then it must be provided with all available applications which conform to minimum statutory, regulatory and board policy requirements. The superintendent is not allowed to withhold applicants from consideration by the school based on his or her subjective considerations. This does not mean that the superintendent is denied the opportunity to render subjective comments and recommendations; however, the superintendent must eventually give the school all applications which meet the minimum legal qualifications and comply with legitimate school board policies.

We hope that this opinion has clarified the interpretation of KRS 160.345(2)(h).

Sincerely yours,

CHRIS GORMAN

ATTORNEY GENERAL

Lynne Schroering Slone

Assistant Attorney General