Application of KRS 160.380(2)(g) to “itinerant” public school teachers

OAG 11-001 January 26, 2011 Subject: Application of KRS 160.380(2)(g) to “itinerant” public school teachers Requested by: Alicia A. Sneed, Esq. Director of Legal Services Education Professional Standards Board Written by: James M. Herrick Assistant Attorney General Syllabus: Outside the grandfather clause, KRS 160.380(2)(g) does not allow for any work by a certified employee in a school where the employee is a relative of the principal. Statutes construed: KRS 160.380(2)(g), KRS 160.345(2)(f) OAG cited: OAG 91-28 Opinion of the Attorney General Alicia A. Sneed, Director of Legal Services for the Education Professional Standards Board, had requested an opinion from this office as to the application of a nepotism statute, KRS 160.380(2)(g), to teachers who are designated as “district-wide” or “itinerant”; i.e., who perform duties at multiple locations in a school district. Teachers designated as “district-wide” are hired directly by the superintendent of the school district pursuant to KRS 160.370, 160.380(2)(a), and 160.390(1), whereas teachers in a single school, known as “school-level” employees, are hired by the principal after consultation with the site-based school council pursuant to KRS 160.345(h). We have received written comments from the Department of Education and the Office of Education Accountability. KRS 160.380(2)(g) provides, in pertinent part, as follows: 1. No principal’s relative shall be employed in the principal’s school, except a relative who is not the principal’s spouse and who was employed in the principal’s school during the 1989-90 school year. 2. No spouse of a principal shall be employed in the principal’s school, except: a. A principal’s spouse who was employed in the principal’s school during the 1989-90 school year for whom there is no position for which the spouse is certified to fill in another school operated in the district; or b. A principal’s spouse who was employed in the 1989-90 school year and is in a school district containing no more than one (1) elementary school, one (1) middle school, and one (1) high school. 3. A principal’s spouse who is employed in the principal’s school shall be evaluated by a school administrator other than the principal. As construed by this office in OAG 91-28, subsection 1 applies to both classified employees and teachers (certified employees) and allows “no conditions under which a classified spouse of a principal may work in his or her spouse’s school,” while including a grandfather clause for non-spouse relatives. Subsection 2 is a more specific provision allowing certain conditions under which principals’ spouses who are teachers may work in their schools, although those conditions are circumscribed by a similar grandfather clause. Non-grandfathered relatives, whether classified or certified, may not be employed in the principal’s school. The question presented is whether, outside the grandfather clause, any circumstances exist under which itinerant teachers may work in schools where a relative is serving as principal. The phrase “employed in the principal’s school” is not defined in the chapter, and we acknowledge its facial ambiguity as applied to itinerant teachers. We do not believe, however, that its proper interpretation turns on whether it is the principal or the superintendent who has the authority to hire the teacher. “To ‘employ’ is a word of more enlarged significance than the word to ‘hire.’” Barnes v. Indian Refining Co., 280 Ky. 811, 134 S.W.2d 620, 622-23 (1939) (quoting Texas Co. v. Wheeless, 187 So. 880, 883 (Miss. 1939)). The mere fact that a teacher may be hired by the superintendent and designated as an itinerant or district-wide employee does not mean that the teacher is not “employed in the principal’s school.” Rather, any teacher whose services are used in a particular school is employed in that school. We find it noteworthy that the statute uses the phrase “employed in the … school” (emphasis added) as opposed to “employed at the … school.” The preposition “at” is used in KRS 160.345(2)(f) when speaking of positions filled at the school level: 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. (Emphasis added.) Although the syntax and the context are not identical, it is significant that the legislature chose the phrase “at the school” to describe school-based positions. Since the same locative language is not used in KRS 160.380(2)(g), we are led to believe that the legislature contemplated the law’s application not merely to positions filled at the school level, but also to positions filled at the district level so long as the employee’s work is performed “in the … school.” The question is also raised whether there is any amount of work, or any proportion of work, that a principal’s relative may perform in the school without violating the intent of the statute. We can find no warrant in KRS 160.380(2)(g) for making any such allowance. Where the legislature “has made no exception to the positive terms of a statute, the presumption is that it intended to make none.” Manning v. Kentucky Bd. of Dentistry, 657 S.W.2d 584, 587 (Ky.App. 1983). Since the statutory language gives no basis on which to define a permissible amount or proportion of work for a relative to perform in the principal’s school, we can only draw the line at zero. The statute thus construed may be a blunt instrument for the purpose of combating nepotism, but there is no constitutional requirement for such legislative solutions to be precisely tailored to the problem; they need only be supported by a rational basis. Chapman v. Gorman, 839 S.W.2d 232, 240 (Ky. 1992). As we cannot supply qualifications to the statute which were not made by the General Assembly, Hatchett v. City of Glasgow, 340 S.W.2d 248, 251 (Ky. 1960), it is our opinion that KRS 160.380(2)(g) must be strictly construed. We are confirmed in this conclusion by the principles underlying nepotism laws in general. In Chapman, supra, the Supreme Court observed that laws of this type remove the threat of nepotism from public employment, an “irritant to taxpayers, [that] can create conflicts of interest and adversely affect the morale of other employees in the school system.” See Whateley v. Leonia Board of Education, 141 N.J.Super. 476, 358 A.2d 826, 828 (1976)…. Such statutes, one court has reasoned, reflect “the state’s interest in providing its children with a meaningful education, [an interest that] is fully and directly served by preventing conflicts in the administration of the educational system.” Hamilton v. Board of Trustees of Oconee School District, 282 S.C. 519, 319 S.E.2d 717, 720 (Ct.App. 1984). 839 S.W.2d at 240 (Additional citation omitted.) The Whateley case, quoted by the Court in Chapman, identified the “irritant to taxpayers” as consisting of “[t]he spectre as well as the fact of nepotism in public employment.” 358 A.2d at 828. This “spectre” of nepotism or of conflict of interest can reasonably be presumed, in the intent of the legislature, to extend beyond the clear case where a relative spends the vast majority of the day or week working at the principal’s school, or is directly supervised or evaluated by the principal. Conclusion It is therefore our opinion that a certified employee, not subject to the grandfather clause in KRS 160.380(2)(g), may not be assigned to work in a school where the employee is a relative of the principal, regardless of the teacher’s “itinerant” or “district-wide” status. Any amount or proportion of work in that principal’s school is prohibited by the statute. Jack Conway Attorney General James M. Herrick Assistant Attorney General “Relative” is defined in KRS 160.380(1)(b) as “father, mother, brother, sister, husband, wife, son, daughter, aunt, uncle, son-in-law, and daughter-in-law.” The fact that a principal’s relative might be evaluated by someone other than the principal would be no mitigating factor, since subsection 3 of KRS 160.380(2)(g) mandates this arrangement as a minimum precaution against nepotism even for spouses who are exempted under the grandfather clause. OAG 11-001 Page 5