[1997/oagheade.htm]

OAG 97-7

March 4, 1997

Subject: Posting requirements for vacancies in a school system.

Written by: Diane Schuler Fleming

Requested by: K. Penney Sanders, Ph.D., Director of the Office of Education Accountability on behalf of Representative Harry Moberly; and E. Joy Arnold, Director of Legal Services for the Kentucky Education Association

Syllabus: A vacancy, as defined by KRS 160.380(1)(b), can occur at any time during the year, not just after July 15. As a general rule, when a vacancy occurs in a local school district, the superintendent must notify the Kentucky Department of Education, and post the position opening in the local school board office for thirty days before filling the position.

OAGs cited: OAG 91-149 (modified); and OAG 91-122.

Statutes construed: KRS 160.345(2)(h); KRS 160.380; and KRS 161.760(2) and (4).

Opinion of the Attorney General

The Office of Education Accountability and the Kentucky Education Association have each requested that our office reconsider OAG 91-149. Specifically, we have been asked to clarify the procedures for posting and filling vacancies in a school district with a school-based decision-making council. This opinion is given pursuant to KRS 15.025(2) and (4).

I. “Vacancy” Defined

We begin our analysis with the definition of the term “vacancy.”

The definition of “vacancy” is set forth in KRS 160.380(1)(b) which states:

“Vacancy” shall mean any certified position opening created by the resignation, dismissal, nonrenewal of contract, transfer, or death of a certified staff member of a local school district, or a new position created in a local school district for which certification is required. However, if an employer-employee bargained contract contains procedures for filling certified position openings created by the resignation, dismissal, nonrenewal of contract, transfer, or death of a certified staff member, or creation of a new position for which certification is required, a vacancy shall not exist, unless certified positions remain open after compliance with those procedures.

Thus, absent an employer-employee bargained contract, whenever a certified employee resigns, is dismissed or his contract is not renewed, or if he is transferred or dies, a vacancy is created. In addition, if a new certified position is created, a vacancy exists.

Previously, in OAG 91-149, our office took the position that “a superintendent may change assignments of personnel prior to July 16 without creating `vacancies' as defined by KRS 160.380(1)(b).” OAG 91-149, p. 4. Our review of OAG 91-149 reveals that our position was erroneous for the following reasons. First, the language employed by the General Assembly in KRS 160.380(1)(b), defining “vacancy,” placed absolutely no restrictions on the time frame in which a vacancy can occur. Thus, we must conclude that a vacancy, as defined by KRS 160.380(1)(b), can occur at any time during the year, not just after July 15.

Second, to reach the conclusion stated in OAG 91-149, we relied upon KRS 161.760 which states in part:

Employment of a teacher, under either a limited or a continuing contract, is employment in the school district only and not in a particular position or school.

KRS 161.760(4). In addition, we noted that KRS 161.760(2) provides that the transfer or change in the appointment of teachers after July 15 shall only be made to fill vacancies created in the circumstances specified. Reading the aforementioned statutes together, we concluded that “it is [only] necessary to post each vacancy as it occurs after July 15 of each school year.” OAG 91-149, p. 5. In essence, we arbitrarily affixed a timetable to the statutory definition of “vacancy.” An analysis of the aforementioned statutes however fails to uphold the logic of our conclusion.

We believe, however, that KRS 160.380(1)(b) can be read compatibly with KRS 161.760(2) and (4). This is because each of these statutes was enacted to address a specific issue in education law. For example, KRS 160.380(1)(b) defines “vacancy” for the purposes of posting requirements which are set forth in later subsections of the statute. In essence, this statute addresses issues which are attendant to a teacher's position within a school district.

KRS 160.760(2) and (4), however, address a different set of issues. Subsection (2) seeks in part to prevent teachers from being transferred to a new position too close to the beginning of the school year. This gives teachers a sense of confidence and continuity as they prepare their assignments for the upcoming school year. Subsection (4) states that a teacher's employment is in the school district and not in a particular position or school. This provision gives teachers a sense of security concerning matters of tenure and retirement. Together, these statutes address issues related to a teacher's employment in the school district.

Thus, it is our position that neither subsection of KRS 161.760 can, nor should, be read to impose an arbitrary timetable upon the definition of “vacancy.” To do so would be to stretch the limits of legal logic for comparing a statute defining “vacancy” for purposes of a teacher's position with a statute defining employment issues, the legal equivalent of comparing apples to oranges.

Finally, it is important to note that OAG 91-149 was written without considering the impact of site-based decision-making. Rather, this opinion was written in the context of pre-KERA law when superintendents were solely responsible for filling vacancies in their school districts. OAG 91-149 failed to take into account the role of school councils and principals in the decision making process.

Therefore, we overrule that portion of OAG 91-149 which fails to integrate the changes implemented by KERA and which arbitrarily determines that a vacancy can only occur after July 15. In accord with KRS 160.380(1)(b), we conclude that a vacancy may be created at any time during the year.

II. Posting Requirements

Having determined what a vacancy is and when it occurs, we now turn our attention to the corresponding posting requirements. These requirements are found in KRS 160.380(2), which states in relevant part:

(b) When a vacancy occurs in a local school district, the superintendent shall notify the chief state school officer thirty (30) days before the position shall be filled. The chief state school officer shall keep a registry of local district vacancies which shall be made available to the public. The local school district shall post position openings in the local board office for public viewing.

(c) When a vacancy needs to be filled in less than thirty (30) days' time to prevent disruption of necessary instructional or support services of the school district, the superintendent may seek a waiver from the chief state school officer. If the waiver is approved, the appointment shall not be made until the person recommended for the position has been approved by the chief state school officer. The chief state school officer shall respond to a district's request for waiver or for approval of an appointment within two (2) working days.

Therefore, when a vacancy occurs in a local school district, the superintendent must notify the Kentucky Department of Education, and post the position openings in the local school board office for thirty days before filling the position. Again, we emphasize that a vacancy may occur at any time during the year.

However, pursuant to OAG 91-149, the following information should be noted. In accord with KRS 160.380(a), extra-duty or extra-curricular assignments which are merely additional assignments to an existing certified position do not need to be posted. In addition, it is not necessary to post an “acting” or interim position as it is temporary in nature. This allows appointments to be made during the interview process to ensure continuity until the position is filled on a permanent basis.

III. Filling Vacancies in a Local School District

The enactment of KERA has changed the procedure for filling a vacancy in a local school district. This process is set forth in KRS 160.345(2)(h) which 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. 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.

Thus, we see that each school is empowered to determine who shall be employed in the various positions available. Specifically, the school council reviews the list of applicants submitted by the superintendent and then consults with the principal. The principal then selects who shall fill the vacancy and his decision is binding upon the superintendent who completes the hiring process. This is done in accordance with KRS 160.380(2)(a) which states in part:

All appointments, promotions, and transfers of principals, supervisors, teachers, and other pubic school employees shall be made only by the superintendent of schools, who shall notify the board of the action taken. . . .

Reading the aforementioned statutes together, one could conclude that the superintendent's authority is qualified to some extent by the school council statute. The superintendent is to submit a list of qualified applicants to the principal and school council for review. The principal then decides whom he will recommend to fill the vacancy. The superintendent is bound by this decision, and completes the process by hiring the recommended individual. See also, OAG 91-122.

It has been brought to our attention that some exceptions to this scenario may exist, thus allowing a superintendent to act unilaterally. While we acknowledge that the perceived existence of these exceptions implicates important educational issues, they are questions of policy rather than law. The function of an opinion from the Attorney General is to address constitutional issues or interpret questions of law, not to resolve disputes, or set administrative policies. Therefore, we respectfully decline to opine on this matter.

IV. Conclusion

OAG 91-149 addressed three distinct issues concerning the interpretation and application of KRS 160.380. First, we were asked a question concerning the posting of extra-duty or extra-curricular assignments. We found that when extra duties are merely additional assignments to an existing position, posting of the extra-duty assignments is not required. However, when a full-time position is either created or vacant, if the extra-duty assignments are considered attached to the position, then they should be posted as part of the position. The issuance of this opinion does not alter the legal conclusions reached in the above-mentioned section of OAG 91-149.

The second question presented in OAG 91-149 asked whether extra-duty or extra-curricular assignments added to coaches' positions would be handled differently. We held that coaches' positions are to be treated in the same manner as other positions and directed that the procedure set forth above be followed. Again, this section of OAG 91-149 is unaffected by the issuance of this opinion.

Finally, we were asked to determine whether a “vacancy” is created when a superintendent concurrently moves members of the staff between or among two or more existing positions. Based upon our analysis in Sections I and II of this opinion, we withdraw that portion of OAG 91-149 which addresses this issue. Specifically, we find that a vacancy, as defined by KRS 160.380(1)(b), can occur at any time during the year, not just after July 15. As a general rule, when a vacancy occurs in a local school district, the superintendent must notify the Kentucky Department of Education, and post the position opening in the local school board office for thirty days before filling the position.

A. B. CHANDLER III

ATTORNEY GENERAL

DIANE SCHULER FLEMING

ASSISTANT ATTORNEY GENERAL