CAROL HOLT v. FT. THOMAS, INDEPENDENT SCHOOL DISTRICT
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RENDERED: JUNE 29, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000984-MR
CAROL HOLT
v.
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE LEONARD L. KOPOWSKI, JUDGE
ACTION NO. 99-CI-00846
FT. THOMAS, INDEPENDENT SCHOOL DISTRICT
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON, AND TACKETT, JUDGES.
BUCKINGHAM, JUDGE: Carol Holt appeals from a summary judgment
entered by the Campbell Circuit Court in favor of Ft. Thomas
Independent School District.
The issue is whether Holt, a former
teacher in the school district who is now on disability
retirement, may recover compensation at her full daily rate for
her accrued sick leave benefits.
The trial court concluded that
she may not, and we affirm.
Holt was hired by the school district as a certified
teacher in 1981.
teacher.
She subsequently qualified as a tenured
On June 30, 1997, Holt sent a letter to the principal
at Highlands High School requesting a leave of absence for the
1997-98 school year due to medical reasons.
She was granted an
unpaid leave of absence by the school district in accordance with
its Policy 03.1234 (Extended Disability Leave).
On April 22,
1998, Holt forwarded a letter to the school superintendent
requesting a second leave of absence due to medical reasons for
the 1998-99 school year.
The school district again granted Holt
an unpaid leave of absence in accordance with the same policy.
On January 14, 1999, Holt submitted her application for
retirement due to disability to the Kentucky Teacher’s Retirement
System (KTRS).
Holt claims that during the application process
she was advised by a KTRS employee that she should have received
payment for her unused sick days.
Her request for disability
retirement was granted on March 15, 1999, with an effective date
of February 1, 1999.1
While her request for disability retirement was
pending, Holt sent a letter to the school superintendent
concerning her sixty-one unused sick days.
In her letter she
asked that she be paid full salary for these days because she
believed she should have been allowed to use them prior to her
unpaid leave of absence from the 1997-98 school year.
1
In a
Kentucky Revised Statute (KRS) 161.661 governs disability
retirement. Under this statute a member of the KTRS earns one
year of eligibility for each four years of service, except that
any member who has completed five years of service receives a
minimum of five years of eligibility. KRS 161.660(3). During her
five-year eligibility period, Holt will receive a disability
allowance equal to sixty percent of her final average salary.
Id. If she remains disabled at the conclusion of her eligibility
period, Holt’s disability retirement benefits will be
recalculated using the service retirement formula. This
recalculation is significant because Holt will earn additional
service credit of one year for each year she is retired for
disability.
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letter dated March 4, 1999, the school superintendent informed
Holt that, under the applicable laws2 and the school district’s
policies, she would be entitled to compensation for the sixty-one
sick days at ten percent of her daily salary rate.
He also
advised her that she failed to qualify under the sick days policy
and thus was not eligible for pay at her normal salary level.
Holt’s situation was brought to the attention of the
school board at its meeting on March 10, 1999.
addresses the board’s action on Holt’s case.
Order # 121
The order reads as
follows:
Retirement Request
Request was submitted for an individual
wishing to permanently retire because of
medical disability needs. Dr. Stinson
reviewed our current retirement policy. Mrs.
Morris moved that the policy be waived in
this particular situation pending review by
our attorney. Mr. Kimball seconded the
motion and all voted in favor.
The effect of this action was to allow Holt to be paid for her
unused sick days (at ten percent of her daily salary rate) even
though she had failed to ask for it in a timely manner in
accordance with the school district’s retirement policy (Policy
03.175).
On July 19, 1999, Holt filed a petition for declaratory
judgment and a complaint against the school district in the
Campbell Circuit Court.
In the complaint, Holt sought a
2
All references to the Kentucky Revised Statutes in this
opinion are to those statutes in effect during this controversy.
The statutes regarding the subject matter of this controversy
were amended in part effective July 14, 2000.
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declaration of rights that she was entitled to one hundred
percent payment of all sick days accumulated during her
employment with the school district.
She also argued that the
board’s policy on retirement and KRS 161.155 were not applicable
because she had not “retired.”
She further argued that the
school district had breached its contract of employment with her
by failing to pay for her accumulated sick days and had also
wrongly converted funds belonging to her.
The trial court entered an order on March 16, 2000,
denying Holt’s motion for summary judgment and granting the
school district’s motion.
Although Holt had requested a judgment
in the amount of $10,864.59 for full payment of her sixty-one
days of accrued sick leave and a hearing on damages for her
contract and tort claims, the court held that Holt was only
entitled to payment at ten percent of her last daily salary rate,
an amount equal to slightly more than $1,000.
The court’s
decision was based on Policy 03.175 (Retirement) and KRS 161.155.
This appeal by Holt followed.
KRS 161.155(2) requires that each school district allow
each teacher in its school system at least ten days of paid sick
leave during each school year.
The statute also allows sick
leave to accumulate “without limitation.”
KRS 161.155(3).
KRS
161.155(4) addresses using accumulated sick leave at the first of
a school year.
That statute states:
Accumulated days of sick leave shall be
granted to a teacher if, prior to the opening
day of the school year, an affidavit or a
certificate of a physician is presented to
the district board of education, stating that
the teacher is unable to commence his duties
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on the opening day of the school year, but
will be able to assume his duties within a
period of time that the board determines to
be reasonable.
KRS 161.155(4).
KRS 161.155(9) addresses compensation to employees or
teachers for unused sick leave at the time of retirement.
That
statute states:
After July 1, 1982, a district board of
education may compensate, at the time of
retirement, an employee or a teacher for each
unused sick leave day. The rate of
compensation for each unused sick leave day
shall be based on a percentage of the daily
salary rate calculated from the employee’s or
teacher’s last annual salary, not to exceed
thirty percent (30%). Payment for unused
sick leave days shall be incorporated into
the annual salary of the final year of
service; provided that the member makes the
regular retirement contribution for members
on the sick leave payment. The accumulation
of these days includes unused sick leave days
held by the employee or teacher at the time
of implementation of the program.
KRS 161.155(9).
In essence, this statute allows a school
district to compensate a teacher for each unused sick leave day
at the time of retirement but limits the rate of compensation to
no more than thirty percent of the teacher’s last daily salary
rate.
The local school board also had several written
policies.
Policy 03.1232 (Sick Leave) stated that full-time
certified employees were entitled to ten days of sick leave with
pay each school year.
The policy also stated that the sick leave
days that were not taken during the school year “shall accumulate
without limitation.”
Further, the policy allowed accumulated
days of sick leave to be used by an employee or teacher at the
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beginning of a school year if, prior to the opening day of the
school year, the employee or teacher presented a physician’s
affidavit or statement to the school board, stating that the
employee was unable to assume his or her duties at the beginning
of the year but would be able to assume the duties within a
reasonable period of time.
Policy 03.1234 sets forth the school district’s policy
regarding extended disability leave.
That policy allows unpaid
leave for the remainder of the school year upon written request
being made to the school board.
The policy also states that the
leave may be extended by the board in increments of no more than
one year.
Finally, Policy 03.175 addresses the treatment of
unused sick days at the time of retirement.
That policy states
in pertinent part that:
Subject to the limitations herein, the Board
shall compensate a certified employee at the
time of retirement for each unused sick leave
day an amount equal to ten percent (10%) of
the daily rate of the employee’s last annual
salary. However, the total compensation
received under this provision shall not
exceed $5,000. In order to receive this
compensation, the employee must have informed
the Superintendent of the pending retirement
by April 15 of the year preceding the final
year of employment (e.g. - notice by
April 15, 1996 for retirement at the end of
the 1996-97 school year).
The trial court essentially held that Holt had
“retired” and that compensation for her unused sick days was
limited by Policy 03.175 to ten percent of the daily rate of her
last annual salary.
On the other hand, Holt argues that she has
not “retired” and that the school district’s policy on
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compensation for unused sick days at the time of retirement is
not applicable to her situation.
She also asserts that KRS
161.155(9), which limits compensation for unused sick leave at
the time of retirement to an amount not to exceed thirty percent
of her last daily salary rate, is not applicable.
Rather, she
notes the differences in the Kentucky statutes between
“retirement” and “disability retirement” and argues that the
trial court erred in determining that she was “retired.”
She
maintains that she has taken advantage of “an employer-sponsored
welfare plan” similar to that at issue in McBarron v. S & T
Industries, Inc., 771 F.2d 94(6th Cir. 1995).
We agree with the trial court that Holt had “retired.”
As the school board noted, “[a]s stated by Respondent, assuming
for the sake of argument that Petitioner is not retired, the
question must be asked as to why she is receiving retirement
benefits.”
Therefore, the school district’s policy on
compensation for unused sick days at the time of retirement was
applicable.
Pursuant to that policy, Holt may be compensated for
the sixty-one days of unused sick leave at ten percent of her
last daily salary rate.
Holt nevertheless contends that she should have been
allowed to use the sixty-one days of unused sick leave at the
beginning of her first unpaid leave of absence.
In accordance
with KRS 161.155(4) and Policy 03.1232, she could have done so
had she presented the required physician’s affidavit or statement
to the school board.
Because she did not meet this requirement,
she may not now be compensated in that manner.
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In this regard, she also asserts that the school board
should have advised her of that right.
argument, she cites OAG 80-151.
In support of this
That opinion involves maternity
leave for teachers and the associated use of accumulated sick
days.
The opinion states in relevant part that “[a]ny sick leave
accrued that is desired to be taken should be used before the
teacher commences the leave of absence without pay status,
authorized by KRS 161.770.
We believe a local board of education
should advise teachers of this application of the law.”
OAG 80-
151.
We disagree with Holt’s argument that the board should
have advised her on this matter when she first submitted her
request for a leave of absence for the 1997-98 school year.
First, an attorney general’s opinion has no binding effect.
Second, we do not believe that the school board was required
further to advise Holt of her options.
This additional
requirement would have been redundant in this case since the
school district had already put into effect policies explaining
the options available to Holt and the requirements necessary to
qualify for each.
Third, there is no indication the board knew
that Holt may have wanted to use her sick days at that time
rather than at a later date.3
In short, we conclude that Holt
may not now be compensated in full for her unused sick days even
3
As a tenured teacher, Holt had the option to return to
active status at the conclusion of an approved leave of absence.
Nothing in the record supports the conclusion that the school
district had notice of Holt’s intent to apply for disability
retirement until she submitted her application to the Kentucky
Teacher’s Retirement System during her leave of absence in the
1998-99 school year.
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though she may have had the option to use them at the beginning
of her unpaid leave of absence had she met the requirements of
the statute and the policy.
Holt also argues that she is entitled to full payment
for her unused sick leave days because the board waived its
retirement policy with regard to her situation at its meeting on
March 10, 1999.
In support of this argument, she cites to the
school board’s Order # 121 which indicated that the school board
waived the policy in her case.
Citing Lewis v. Board of
Education of Johnson County, Ky., 348 S.W.2d 921 (1961), she
accurately cites the rule of law that “a board of education can
speak only through its records” and that “[s]uch records cannot
be enlarged or restricted by parol evidence.”
Id. at 923.
Assuming the school board did waive its policy
concerning compensation for unused sick days at the time of
retirement, it does not follow that Holt is entitled to full
compensation for those sick days.4
KRS 161.155(9) states that a
school district “may compensate” for unused sick leave days at
the time of retirement.
(Emphasis added.)
The statute does not
require school districts to grant such compensation.
Thus, if
there is no school district policy in effect to compensate
4
The school district claims that the school board did not
waive its retirement policy concerning compensation for unused
sick days. Rather, it claims that it waived the requirement in
its policy that the employee must give notice to the school
superintendent of his or her pending retirement by no later than
April 15 of the year preceding the final year of employment in
order to receive compensation for unused sick leave at the time
of retirement. Holt had not given such timely notice, and it
appears that Holt would have received no compensation whatsoever
had the board not waived this portion of the policy.
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teachers for unused sick leave days at the time of retirement,
then Holt is not entitled to any compensation for such days.
We
find no merit to her argument that “the sixty-one (61) days of
accrued sick leave are a constitutionally protected and
recognized contractual right that cannot be denied without due
process of law.”
Finally, Holt argues that the trial court erred in
granting summary judgment on her claims for breach of contract
and conversion.
She asserts in her brief that the trial court
failed to address these issues.
However, we agree with the
school district that the court decided these issues implicitly in
its ruling.
Because Holt was not entitled to further
compensation for unused sick leave at the time of her retirement,
there could be no breach of contract or conversion as a matter of
law.
The judgment of the Campbell Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Steven R. Dowell
Newport, Kentucky
Donald J. Ruberg
Covington, Kentucky
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