[1997/oagheade.htm]

OAG 97-4

February 25, 1997

Subject: “Lay Person” Definition as Used in KRS 161.790(4)

Written By: Scott White, Assistant Deputy Attorney General

Requested By: William R. Wooldridge

Syllabus: The term “lay person” as used in KRS 161.790 is to be accorded its plain meaning so as to give effect to the legislative intent of the statute. Employing the rules of statutory construction, the term “lay person” would not include any person who presently is, or has been, a professional educator.

Statutes Construed: KRS 161.790

Opinion of the Attorney General

I. Introduction

This Office has been asked by William R. Wooldridge, a teacher in the Hardin County school system, whether a three-person tribunal appointed pursuant to KRS 161.790(4) may include a retired or non-practicing educator to fill the “lay person” slot. For purposes of this opinion, “educator” shall mean a teacher or administrator. This opinion is rendered pursuant to KRS 15.025(4). It is our opinion that this is a matter of public interest such that an Attorney General's Opinion on the subject is deemed desirable.

The Commissioner of the Kentucky Department of Education (Commonwealth), from time to time, has appointed a retired administrator or teacher to serve with a currently employed teacher and administrator on such tribunals. Because of this practice, we deem it appropriate to issue an opinion on this issue.

Based upon the clear meaning of KRS 161.790(4) and use of well-established rules of statutory construction, it is the opinion of the Attorney General that the use of retired, unemployed or former teachers and administrators to fill the slot of “lay person” on the KRS 161.790(4) tribunal, no matter the policy reasons, is not authorized by the statute.

II. Legal Analysis

KRS 161.790 “Termination of Contract by Board; Sanctions” states, as a matter of public policy, that the contract of the teacher is to remain in force during good behavior and efficient and competent service by the teacher. The statute also provides categories in which a current contract may be terminated. These include: insubordination, immoral character, conduct unbecoming a teacher, physical or mental disability or inefficiency, incompetency, or neglect of duty. This statute also provides the due process to be given a teacher whose contract is sought to be terminated by the school board.

KRS 161.790(2) requires that any charges brought to support a termination must be supported by a written record of teacher performance, and that the superintendent must notify the Board of the action. However, 10 days prior to the notice to the Board, the superintendent must furnish the teacher with a written statement specifying in detail the charges.

KRS 161.790(3) provides that the teacher, within ten days after receiving the charge from the superintendent, may notify the chief state school officer (the Commissioner) and the superintendent of his/her intention to answer the charge. If no notice is given, then the dismissal shall be final upon notification of the Board by the superintendent.

However, if the teacher elects to answer the charge, then an initial due process hearing takes place before a three-member tribunal appointed by the commissioner which then conducts an administrative hearing in accordance with KRS Chapter 13B. Following a final determination by the tribunal, appeal rights attach. Also, it is imperative to note that the tribunal is also used to hear teacher appeals from other sanctions, including suspension without pay and public reprimand. KRS 161.790(9).

The key issue to be answered by this opinion concerns the composition of the tribunal. KRS 161.790(4) provides, in its entirety:

Upon receipt of the teacher's notice of his intention to answer the charge, the chief state school officer shall appoint a three-member tribunal, consisting of one teacher, one administrator, and one lay person, none of whom reside in the district, to conduct an administrative hearing in accordance with KRS Chapter 13B within the district. The chief state school officer shall name the chairman and set the date and time for the hearing. The hearing shall begin no later than 45 days after the teacher files the notice of intent to answer the charge.

Id.

There is no question that the commissioner must appoint one teacher and one administrator, both of which must be currently employed in that capacity, who do not reside within the school district. Our issue concerns the meaning to be given to the phrase “lay person” who also is to be appointed.

The term “lay person” is not defined anywhere in Chapter 161. Therefore, we must resort to the use of well-established rules of statutory construction to derive the meaning of this term as it appears in that statute. It is a well-settled rule of statutory construction that where there is no specific statutory definition, words of a statute must be construed according to their common and approved usage. Courts imbue statutory language with its literal meaning unless to do so would lead to absurd or wholly unreasonable results. Kentucky Unemployment Insurance Co. v. Jones, Ky. App., 809 S.W.2d 715 (1991). The purpose for doing this is to insure that the general purpose and intent of the legislature is carried out in the application of the statute. Department of Revenue v. Miller, 303 Ky. 822, 199 S.W.2d 622 (1947).

The use of this rule of construction to define “lay person” finds further support in our Revised Statutes. For example, KRS 164.9817 provides for the appointment of “lay persons” to the state autism training center. In the context of that statute, lay persons are distinguished from persons from professional fields relating to autism and from parents or guardians of children eligible for the center's programs. Likewise, KRS 212.020(1) provides that one lay person shall serve on the county health board with various health care professionals, county judge executive and a person appointed by the fiscal court. In KRS 212.640, a lay person is to serve on the city-county board of health for cities of the second class along with qualified and licensed health care professionals. Under both KRS 212.020 and 212.640, a lay person is distinguished from persons with professional training in that particular field. Thus, as the term “lay person” appears in other contexts of the Revised Statutes, the term clearly means persons other than those specially trained in a given profession or field.

The plain meaning of “lay person” is not arcane, but familiar to most people. Webster's Preferred New International Dictionary defines “lay,” fifth usage, as “not of or from a particular profession; not having special training or knowledge; unprofessional; common, ordinary.” Black's Law Dictionary also defines “lay,” as “non- professional.”

In the hearing of a charge against a teacher, where that teacher is subject to discipline up to termination of a contract, the General Assembly insured that two of the three members of the tribunal would have professional expertise in the field of education. However, by also requiring the appointment of a lay person, the General Assembly indicated that at least one person without such specialized training must also serve on the tribunal to represent the interests of the community. This is particularly significant given the high level of public interest and accountability in the education of our children.

We are certainly sympathetic with the Department of Education's need to fill all three of the required tribunal positions so that a due process hearing may occur. Despite any difficulty there may be in locating willing lay persons, the commissioner cannot resort to retired, unemployed or no longer practicing educators to fill the position of lay person.

III. Conclusion

Based upon the foregoing analysis, it is the opinion of the Attorney General, insofar as KRS 161.790(4)'s tribunals are concerned, that the term “lay person” must be given its plain meaning. The Commissioner may not employ retired, unemployed or no longer working educators to serve along with an employed teacher and administrator. To do otherwise would frustrate the intent of the General Assembly which established the tribunal hearing process in 1990.

Albert B. Chandler, III

Attorney General

Scott White

Assistant Deputy Attorney General