[1996/oagheade.htm]

OAG 96-38

October 31, 1996

Subject: School-based Decision-making Councils

Written by: Diane Schuler Fleming

Requested by: Commissioner Wilmer S. Cody, Kentucky Department of Education

Syllabus: A school council's authority to determine the school curriculum and to make corresponding decisions as to the number of personnel in each job classification necessary to implement their policies, is not a violation of the statutory prohibition against a school council recommending transfers or dismissals.

Statute construed: KRS 160.345

Opinion of the Attorney General

Our office has been asked whether a school council can make a curriculum policy decision which has the ultimate effect of transferring or dismissing an employee. It is our opinion that such decision-making is permissible.

The powers and duties of the school councils are set forth in KRS 160.345. Of specific interest is KRS 160.345(2)(f) which provides:

After receiving notification of the funds available for the school from the local board, the school council shall determine, within the parameters of the total available funds, the number of persons to be employed in each job classification at the school. The council may make personnel decisions on vacancies occurring after the school council is formed but shall not have authority to recommend transfers or dismissals.

In addition to the responsibility of determining the number of employees in each job classification, the school council is also empowered to determine the school's curriculum. KRS 160.345(2)(i)(1). The only statutory restriction on a school council's power in this area is that it must operate within the parameters of the allocated funds.

Clearly, a school council may determine, for example, how many physical education teachers, art teachers, music teachers, etc., are needed and employed by the school. As a result of these decisions, it may be necessary for the superintendent to transfer, or reduce staff, or change the employment conditions of the staff. The question before us is whether this process violates the prohibition against a school council recommending transfers or dismissals.

To answer this question, we need look no further than the recent Kentucky Supreme Court decision in Board of Education of Boone Co. v. Bushee, Ky., 889 S.W.2d 809 (1994). There, the court discussed at length the delegation of power and sphere of responsibility of state government, local school boards, and school councils. In summary, the court found that state government bears the responsibility of providing adequate funding for the schools and is accountable for the overall success of Kentucky's education reforms. The local school boards are responsible for the general management and control of school funds and school property, as well as the appointment of a superintendent and setting the compensation of the employees.

Turning to school councils, the court noted that each is responsible for setting the school policy of its own school “consistent with district board policy.” KRS 160.345(2)(c). Addressing the issue of whether the statute effectively limited the school councils' actions by requiring board approval, the court found that it did not. The court reasoned that decentralization of authority is a primary objective of KERA, as evidenced by the laws enacted by the General Assembly. Specifically, the court looked to the language found in KRS 160.345(4), which states in part:

. . . in addition to the authority granted to the school council [by the legislature] the local board may grant to the school council any other authority permitted by law.

The court concluded that this language was a clear indication that the legislature has delegated to the school council its own authority, independent from the school board. Instead of requiring that the board approve the council's actions, the court said the language ensures consistency and places administrative limitations on the council's actions in areas such as funding and personnel decisions. Id. at 814 - 815.

Applying the Supreme Court's rationale to the question before us, we find no violation of KRS 160.345. Clearly, a school council has the authority to determine the school curriculum and to make corresponding decisions as to the number of personnel in each job classification necessary to implement its policies. While this may result in the transfer of an employee, it is not the recommendation of such by the council, and thus is not a violation of the statutory prohibition against a school council recommending transfers or dismissals. Such recommendations and decisions, which have a district-wide impact, are still in the purview of the local school board and superintendent.

A. B. Chandler III

Attorney General

Diane Schuler Fleming

Assistant Attorney General