MARY ROBINSON v. RONALD BACK, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF RUSSELL INDEPENDENT SCHOOLS; AND BOARD OF EDUCATION OF RUSSELL INDEPENDENT SCHOOL DISTRICT
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RENDERED: May 16, 2003; 10:00 a.m.
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Commonwealth of Kentucky
Court of Appeals
NO.
2001-CA-001933-MR
MARY ROBINSON
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 99-CI-00445
v.
RONALD BACK, IN HIS OFFICIAL
CAPACITY AS SUPERINTENDENT OF
RUSSELL INDEPENDENT SCHOOLS; AND
BOARD OF EDUCATION OF RUSSELL
INDEPENDENT SCHOOL DISTRICT
APPELLEES
OPINION
AFFIRMING IN PART - REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
THE FULL COURT SITTING EN BANC.
PER CURIAM:
This appeal has been taken from summary judgments
entered by the Greenup Circuit Court denying relief to the
appellant on her claims against the superintendent and board of
the Russell Independent Schools.
The appellant alleged a
violation of KRS 160.345 and also alleged gender discrimination
in the failure of the superintendent to submit her application
for a position as principal to the Russell High School Site
Based Decision Making Council.
The appellant also sought
compensation alleged to be due her as a result of extra work
performed at the end of a previous school year.
After hearing oral argument, the panel to whom this
appeal was initially assigned split on the issue of whether KRS
160.345 had been violated.
Because there were a number of other
cases pending presenting variations on this issue, the Court
elected to present the issue to the full Court for a consensus
decision binding on the Court in all other pending matters.
The
other issues presented have been decided by the original panel.
The decision of the Court will be announced in the
following sequence:
(1) The opinion of Judge Guidugli writing
for the panel affirming the summary judgment on the claim for
additional compensation for the 1995-1996 school year and
reversing and remanding on the gender discrimination claim; (2)
the opinion of the Chief Judge writing for a majority of the
full Court reversing and remanding on the issue of the construction of KRS 160.345; (3) the opinion of Judge Knopf concurring
by separate opinion; (4) the opinion of Judge Guidugli
dissenting on the issue of the construction of KRS 160.345.
The decision of the Greenup Circuit Court is affirmed
in part and reversed in part, and this case is remanded for
further proceedings in accordance with this opinion.
2
* * * *
GUIDUGLI, JUDGE, WRITING FOR THE PANEL AFFIRMING THE SUMMARY
JUDGMENT ON THE CLAIM FOR ADDITIONAL COMPENSATION FOR THE 19951996 SCHOOL YEAR AND REVERSING AND REMANDING ON THE GENDER
DISCRIMINATION CLAIM:
GUIDUGLI, JUDGE.
Mary Robinson (hereinafter Robinson) appeals
from the Greenup Circuit Court=s orders granting summary judgment
to Ronald Back, in his official capacity as Superintendent of
Russell Independent Schools (hereinafter Back) and the Board of
Education of Russell Independent School District (hereinafter
the Board) (collectively the appellees).
The facts leading up to summary judgment were set
forth by Judge Nicholls of the Greenup Circuit Court and are
adopted as follows.
The plaintiff [Robinson] filed a complaint
on September 21, 1999, alleging three (3)
separate counts.
1. Violation of KRS 160.345
2. Violation of KRS Chapter 344, Sex
Discrimination case
3. Failure to pay Plaintiff for extra
work she performed at the end of the 19951996 school year.
During the 1996-1997 school year the
Plaintiff filed an application with the
Russell School Board for the Position of
principal at Russell High School. She and
ten to twelve (10-12) other applicants
applied for the job. (Back deposition at
page 8, line 14). Pursuant to KRS
160.345(2)(h) the superintendent forwarded
four (4) applications to the Russell High
3
School Site Based Council (hereinafter named
SBC). The Superintendent deposed that the
only special qualification he was looking
for was Amarvelous leadership skills. We
didn=t set any other qualifications - the
Council didn=t set any other qualifications,
no.@ (Back deposition at page 10, line 13).
The SBA went into closed session to discuss
with Mr. Back if he would send additional
qualified candidates [to the SBC for
review]. Karen Cooke, a business education
teacher on the SBC deposed that AThe purpose
for that meeting was based upon the fact
that the five of us were aware that the four
candidates did not meet the criteria asked
for by the parents and the teachers. And we
knew that there were more applicants, and we
wanted him to send us additional
credentials.@ (Deposition of Karen Cooke,
page 9, lines 18-23) Apparently the SBC
established criterion, but the
superintendent was not aware of it.
The SBC met and eventually decided it
was not satisfied with the four (4)
applicants submitted by the superintendent.
So, the SBC requested additional qualified
applicants be forwarded to them for
consideration. The superintendent told the
SBC Athere were no more qualified applicants
for the position.” (Deposition of Mary Smith
page 13 line 19). The Superintendent
explained that he had received advice from
people, Ain Frankfort, authority figures and
department chairs and attorneys that the term
qualified when it comes to principalship
selections, means that they have the
certifications and they have my [the
superintendent=s] recommendations. That=s
what the term qualified means when it comes
to principalship selection.@ (Back Deposition
page 29, lines 14-24).
The superintendent explained to the SBC
that if they could not select a principal from
the four (4) names, then he would advertise
next spring for the position and select an
interim principal until a permanent one was
4
chosen. The SBC did not ask the
superintendent to appoint an interim principal
until a permanent one was chosen. Instead,
they elected Mr. Randy Everly, a male, from
the four (4) previous submitted applications
to the principalship for the 1998-1999 school
year.
Robinson petitioned the Greenup Circuit Court for a
partial summary judgment on the grounds that she was entitled to
have had her name submitted to the SBC as a Aqualified@ candidate
pursuant to KRS 160.345(2)(h).
Back and the Board responded
with a cross motion claiming that there was no genuine issue of
material fact and requested summary judgment on this issue.
They contended that a candidate for principal was Aqualified@
only when the candidate possessed both the requisite
certifications and a recommendation from the superintendent of
the school district.
Absent such recommendation, a candidate
would not be qualified to have his or her application for the
principal position submitted to the SBC.
Following depositions, the appellees filed a motion
and an accompanying memorandum in support requesting summary
judgment.
In the memorandum, they asserted that KRS 160.345
(2)(h) required a recommendation from the superintendent of a
school district in order for a candidate for a principalship to
be Aqualified.@
They contended that since Robinson was not
recommended by Back she was thereby not Aqualified@ and thus Back
5
was under no statutory obligation to submit her application to
the SBC.
While the appellees conceded that neither Back nor the
Board would be protected by sovereign immunity under Section 231
of the Kentucky Constitution for a gender discrimination claim
pursuant to Ammerman v. Board of Education of Nicholas Co., Ky.,
30 S.W.3d 793 (2000), they asserted that Robinson should be
precluded from bringing this action under the doctrine of
election of remedies.
The appellees further asserted that there
was no factual basis in the record to support Robinson=s claim of
gender discrimination and thus summary judgment was appropriate.
They also contended that the employment contract claim brought
for alleged extra work was barred by sovereign immunity and thus
summary judgment was appropriate.
Robinson also filed a memorandum in support of her
renewed motion for partial summary judgment.
Robinson stated
that based on her education and experience she was Aqualified@ to
serve as principal.
Therefore, failure to submit her
application to the SBC when asked for additional qualified
applicants was, in her view, a violation of KRS 160.345(2)(h).
Robinson also relied on the last sentence of KRS 160.345(2)(h)
and OAG Opinion 95-10 as support for her position that being
certified made her a qualified applicant and that her
6
application should have been forwarded to the SBC once the SBC
requested additional qualified applicants.
Robinson also addressed the appellees= claim of
sovereign immunity asserting that they were not protected under
this doctrine from her gender discrimination claim.
She also
asserted that her Chapter 344 gender discrimination claim was
not subject to the doctrine of election of remedies and that she
had made out a prima facie case of gender discrimination
sufficient to withstand a motion for summary judgment.
The
trial court denied Robinson=s motion for a partial summary
judgment and granted the appellees= cross motion for summary
judgment with respect to both the KRS 160.345 claim and the
gender discrimination claim.
While the trial court initially
denied the appellees= motion for summary judgment on the extra
work claim, it later granted the motion for partial summary
judgment on this issue.
Robinson appeals these orders.
Summary judgment is only proper where the movant shows
that the adverse party could not prevail under any
circumstances.
Steelvest, Inc. v. Scansteel Service Center,
Inc., Ky., 807 S.W.2d 476, 480 (1991).
However, a party
opposing a properly supported summary judgment motion cannot
defeat that motion without presenting at least some affirmative
evidence demonstrating that there is a genuine issue of material
fact requiring trial.
Hubble v. Johnson, Ky., 841 S.W.2d 169,
7
171 (1992).
The circuit court must view the record Ain a light
most favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.@
Steelvest, supra at 480.
On appeal, the standard of review is
Awhether the trial court correctly found that there were no
genuine issues as to any material fact and that the moving party
was entitled to judgment as a matter of law.@
Ky. App., 916 S.W.2d 779, 781 (1996).
Scifres v. Kraft,
Since factual findings
are not at issue, deference to the trial court is not required.
Id.
GENDER DISCRIMINATION
The trial court incorrectly applied the doctrine of
election of remedies to the gender discrimination issue in this
case.
The doctrine of election of remedies provides that when a
person has at her disposal two modes of redress that are
contradictory and inconsistent with each other, her deliberate
and settled choice and pursuit of one will preclude her later
choice and pursuit of the other.
Ky. App., 75 S.W.3d 229 (2001).
Wilson v. Lowe’s Home Center,
The trial court relied on
Vaezkoroni v. Domino’s Pizza, Inc., Ky., 914 S.W.2d 341 (1995),
as authority for its finding that Robinson=s action in filing a
claim with the Equal Employment Opportunity Commission
(hereinafter EEOC) in 1998 precluded her from bringing this
action.
The trial court stated that the Afiling of an
8
administrative complaint bars such court action under the
doctrine of election of remedies.@
While it is true that Vaezkoroni established a
standard in the Commonwealth that provides both administrative
and judicial sources of relief for claims arising under the
Kentucky Civil Rights Act, the facts of Vaezkoroni and the
statute indicate that this standard applies only to the Kentucky
Human Rights Commission and local commissions.
On appeal, the
appellees argue that the case of Founder v. Cabinet for Human
Resources, Ky. App., 23 S.W.3d 221 (1999), is controlling on
this issue.
This panel is of the opinion that Founder should be
viewed narrowly.
Furthermore, the opinion of Grego v. Meijer,
Inc., 187 F.Supp.2d 689 (W.D.Ky. 2001), and this Court=s more
recent opinion of Wilson, supra, are more persuasive.
The trial court’s reliance on the doctrine of election
of remedies in this case was misplaced.
of discrimination with the EEOC.
Robinson filed a charge
After filing the charge, she
was notified by the EEOC that her file was being closed and she
was informed of her right to sue.
It is not alleged that
Robinson ever filed a complaint with any agency of the
Commonwealth other than the instant circuit court action.
As
such, the trial court’s reliance on the doctrine of election of
remedies to grant summary judgment was inappropriate.
9
The trial court also examined the sex discrimination
claim to determine if there was a genuine issue of material
fact.
The trial court utilized the test set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 1824, 36
L.Ed.2d 668 (1973), and determined that Robinson did not meet
the first prong of the test because she failed to prove a prima
facie case of sex discrimination, and that summary judgment was
therefore appropriate.
While the test used by the trial court
was proper, it did not correctly apply this test to the facts of
this case because it focused on whether or not Robinson was
Aqualified@ to be a principal under KRS 160.345.
In order to
establish a prima facie case for sex discrimination, a plaintiff
must show (1) that she is a member of a protected class; (2)
that she is qualified for the available position; (3) that she
did not receive the job; and (4) that the position remained open
and the employer sought other applicants (or filled the job with
a male as in this case).
Id.
We accept Robinson=s position that
viewing the facts of this case in the light most favorable to
her, as the non-moving party, she objectively has presented the
elements to establish a prima facie case for sex discrimination.
Accepting that Robinson has demonstrated that she met
the four-part test in McDonnell Douglas Corp., supra, and thus
established a prima facie case of discrimination, the burden
shifts to the employer [the appellees in this case] to
10
articulate a legitimate and nondiscriminatory reason for its
action.
Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
The plaintiff
then “bears the burden of showing by a preponderance of the
evidence that the ‘legitimate reason’ propounded by the employer
is merely pretext to camouflage the true discriminatory reason
underlying its actions.@
S.W.3d 117, 120 (2000).
Turner v. Pendennis Club, Ky. App., 19
Robinson=s claim of sex discrimination
is based upon her belief that her application should have been
submitted to the SBC pursuant to KRS 160.345 and upon the fact
that Back only submitted male applicants.
Appellees argue that
Back=s only reason for not submitting her application was his
reservation about her leadership skills.
We believe that under
these circumstances, summary judgment was inappropriate.
Whether or not Robinson will ultimately be successful in her
claim is not the standard by which her claim is to be decided.
There are genuine issues of material fact still in controversy.
As such, we reverse the trial court=s order granting summary
judgment and remand for additional proceedings on this issue.
Failure to Compensate
Robinson also argues that the trial court=s Afailure to
apply the appropriate law to the facts of the case is reversible
error.@
However, this panel holds that the trial court applied
the appropriate law to the facts of the case.
11
Thus, the entry
of a summary judgment was appropriate.
Robinson=s oral agreement
with a former principal could not obligate either of the
appellees.
Public agencies cannot become liable under implied
contracts.
Ramsey v. Board of Education of Whitley Co., Ky.
App., 789 S.W.2d 784, 786 (1990), citing, Boyd Fiscal Court v.
Ashland Public Library Board of Trustees, Ky., 634 S.W.2d 417,
418 (1982).
McANULTY AND TACKETT, JUDGES, CONCUR WITH THIS
OPINION.
* * * *
EMBERTON, CHIEF JUDGE, WRITING FOR THE MAJORITY OF THE FULL
COURT ON THE ISSUE OF THE APPLICATION OF KRS 160.345:
EMBERTON, CHIEF JUDGE.
The court is sitting en banc only as to
the question of whether under KRS 160.345(2)(h) the
superintendent of a local school district is required to provide
to the Site Based Decision Making Council additional applicants
for a principalship when applicants are available and qualified
but do not have the recommendation of the superintendent.
In view of Judge Guidugli’s adoption of the trial
court’s statement of facts we find no reason to reiterate them
here.
However, we do find it necessary to more fully address
the objectives of the General Assembly in its effort, through
passage of the Kentucky Education Reform Act, to rid the
educational system of favoritism, nepotism and the overall
damaging effects from generations of political influence.
12
In
Rose v. Council for Better Education, Inc.,1 the Kentucky Supreme
Court directed that the General Assembly “recreate and redesign
a new system that will comply with standards . . .” set out by
the Court.
Among those standards are:
“(6) Common schools
shall be monitored by the General Assembly to assure that they
are operated . . . with no political influence.”2
Given the court’s directives in Rose and being aware
of the history in Kentucky that school systems have served as
vehicles through which many superintendents and school board
members have provided jobs for family members, friends and
friends of friends, for countless years, the 1990 General
Assembly enacted the Kentucky Education Reform Act.
Not only
did KERA revolutionize the concept of public education in
Kentucky, but perhaps equally important, it provided the changes
necessary to minimize negative political influence on the
administration of the system.
Indeed many regional political
dynasties of less than a generation ago were built over time
through the power and influence of local school systems.
1
Ky., 790 S.W.2d 186, 212 (1989).
2
Board of Education of Boone County v. Bushee, Ky., 889 S.W.2d 809,
811 (1994)(quoting Rose, supra, at 213).
13
Without the ability to control hiring the political dynasties of
many districts could no longer survive.
By reform of the hiring process through KERA, the
General Assembly has now virtually eliminated the opportunity
for board members and superintendents to engage in favoritism
and nepotism.
As a result practically every district in
Kentucky is now, for the most part, free from such political
influence.
However, to follow the interpretation given KRS
160.345(2)(h) in the trial court’s holding, diminishing the
authority of the Site Based Decision Making Council and enabling
the superintendent to name the principal, defeats the primary
intent of KERA.
In order to assure that the enumerated standards
mandated by Rose are followed – standards such as monitoring by
the General Assembly to assure the systems are operated with no
political influence – the General Assembly declared the
essential strategic point of KERA to be the decentralization of
decision making authority so as to involve all participants in
the school system.3
Setting forth specifically the responsibility and
limitations of the superintendent and describing particularly
3
Id. at 812.
14
the function of the council and the principal, KRS 160.345(2)(h)
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, consistent with
subsection (2)(i)10 of this section. The
superintendent may forward to the school
council the names of qualified applicants who
have pending certification from the Education
Professional Standards Board based on recent
completion of preparation requirements, outof-state preparation, or alternative routes
to certification pursuant to KRS 161.028 and
161.048. 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. When a vacancy in the
school principalship occurs, the school
council shall receive training in recruitment
and interviewing techniques prior to carrying
out the process of selecting a principal.
The council shall select the trainer to
deliver the training. Personnel decisions
made at the school level under the authority
of this subsection shall be binding on the
superintendent who completes the hiring
process. Applicants subsequently employed
shall provide evidence that they are
certified prior to assuming the duties of a
position in accordance with KRS 161.020. The
superintendent shall provide additional
applicants upon request when qualified
applicants are available. (Emphasis added).
In following the statute as a literal instruction to
the council and the superintendent in hiring a principal, it is
first the duty of the local superintendent to submit to the
council a list of candidates he recommends for the position.
15
It
then becomes the responsibility of the council to choose from
such list one of the applicants to fill the vacancy, unless,
following its interviews and other appropriate considerations,
it elects not to accept any of those recommended.
The council
may then request that additional applicants be provided by the
superintendent and, he, being bound by the decision of the
council, shall comply with such request when qualified candidates are available.
The trial court accepted the argument of Superintendent Back that the recommendation of the superintendent is to be
encompassed in the meaning of “qualified” as it is used in the
last sentence of subsection (h).
KRS 160.345(2)(h) is a confusingly constructed section
making it unusually difficult to determine clearly its meaning.
However, it seems clear that with the broad range of meanings
that might be given to “qualified,” the writer of the statute
would deem it critical to use the word “recommend” if that were
indeed his intent.
The trial court’s effort to find in subsection (h) a
meaning that is clearly not stated, resulted in an interpretation contrary to one of the primary objectives of KERA, the
decentralization of decision making authority.
One of the
objectives to be met by decentralization was in response to
standard number 6 in Rose, relating to elimination of political
16
influence.
However, the trial court’s interpretation substant-
ially weakens decentralization and could well result in an
eventual reversion to the pre-KERA hiring practices.
Under the holding of the trial court nothing prevents
a superintendent from manipulating the system since the council
would not be entitled to request, receive and choose from all
additional applicants.
He could recommend with impunity, only
one applicant out of ten or twelve and refuse to provide more,
in effect forcing the council to select his choice.
With at least some attribution to the decentralization
of decision making authority in hiring practices, Kentucky’s
school system is rapidly becoming one of the nation’s finest,
one presently led by capable and dedicated educators as superintendents of most districts.
However, the trial court’s
interpretation of KRS 160.345(2)(h) would eventually be detrimental to many school districts in Kentucky.
Because the trial court’s holding is contrary to the
General Assembly’s declared intent to create a decentralized
decision-making authority, we hold that the application of the
appellant and all other applications requested by the Site Based
Decision Making Council, so long as they possess the qualifications as required by statute, must be provided to the Council by
the superintendent for its consideration in selection of the
principal.
17
BAKER, BARBER, BUCKINGHAM, JOHNSON, AND TACKETT,
JUDGES, CONCUR WITH THIS OPINION.
* * * *
KNOPF, JUDGE, CONCURRING WITH SEPARATE OPINION:
KNOPF, JUDGE.
I agree with much of the reasoning and the result
of the majority opinion, but I write separately to address
certain positions expressed in both the majority and dissenting
opinions.
The en banc majority and the dissent argue,
respectively, that neither school superintendents nor sitebased-decision-making (SBDM) councils can be trusted to rise
above their own political concerns to hire the most qualified
applicant as principal.
I cannot agree with either sentiment.
As the dissent correctly notes, the vast majority of school
superintendents endeavor to exercise their authority fairly and
in accord with their best judgment.
However, the dissent then
launches into a criticism of teachers controlling the hiring of
the school principals.
Not only is this assertion factually
incorrect – three out of six members of the SBDM council do not
comprise a “majority” – but also the characterization of
teachers as “foxes guarding the henhouse” is simply unfair.
Moreover, it is not up to this Court to decide whether
school superintendents or SBDM councils should select
principals.
The legislature has made that decision.
One of the
primary objectives of KERA was to decentralize authority away
from the school superintendent in favor of administrators,
18
students, teachers, and parents who are most affected by what
occurs at that school.
Board of Education of Boone County v.
Bushee, Ky., 889 S.W.2d 809, 814 (1994).
To this end, and
contrary to the argument advanced by the dissent, KRS
160.345(2)(h) expressly vests the SBDM council, not the
superintendent, with the authority to select the principal.
Although the superintendent actually hires the principal, the
superintendent is bound by the choice made by the SBDM council.
Our function is to determine the role of the
superintendent within this statutory scheme.
As set out in KRS
160.345(2)(h), the superintendent has the authority to make the
initial review of the applications and to recommend particular
qualified applicants to the SBDM council.
Such a review
encompasses two general elements: an objective determination of
whether the applicant meets the minimum statutory and
professional criteria for the position; and a subjective
consideration of whether the applicant possesses the experience
and the philosophy necessary to be the most effective principal.
Superintendent Back testified that he was looking for someone
with “marvelous leadership skills.”
Taking this statement at
face value, such a consideration is still entirely subjective.
But while Superintendent Back had the discretion to
recommend applicants who he felt possessed intangible leadership
qualities, the Russell SBDM Council was not bound to accept his
19
judgment.
The SBDM Council could choose a principal from the
list of applicants recommended by the superintendent, or it
could ask Superintendent Back to provide “additional applicants
upon request when qualified applicants are available.”
Allowing
a superintendent to withhold objectively qualified applicants
based upon the superintendent’s subjective opinion would skew
the process and would undermine the authority of the SBDM
council to choose the new principal.
Therefore, I agree with
the majority that the term “qualified applicants” as used in KRS
160.345(2)(h) means those applicants who meet the minimum legal
and objective criteria for the position of principal.
JOHNSON AND PAISLEY, JUDGES, CONCUR WITH THIS OPINION.
* * * *
GUIDUGLI, JUDGE, DISSENTING ON THE ISSUE OF THE CONSTRUCTION OF
KRS 160.345:
GUIDUGLI, JUDGE.
I must respectfully dissent from the majority
opinion relative to KRS 160.745(2)(b).
In reviewing the record, I believe the well-reasoned
opinion of the Greenup Circuit Court aptly discusses the
complexities of this issue and I, therefore, adopt it as set
forth below:
In 1999, the Kentucky legislature
adopted SBC decision making to provide the
teachers and parents with a voice in
determining the principal at individual
schools. The procedure for selection of a
principal is spelled out in the following
statute:
20
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 consistent with subsection
(2)(i)(10) of this section. 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. When a vacancy in the
school principalship occurs, the school
council shall receive training in
recruitment and interviewing techniques
prior to carrying out the process of
selecting a principal. The council
shall select the trainer to deliver the
training. 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. KRS 160.345(h) (Emphasis
added).
The statute states that the SBC shall
select the new principal from among those
persons recommended by the local
superintendent. The Legislature appears to
be saying that the superintendent had
discretion in who the SBC shall hire by its
use of the word Arecommended@. Webster=s
Dictionary defines recommend, Ato name or
speak favorably as suited for some use,
function, position, etc.@ Webster=s New 20th
Century Dictionary, Second Edition, The World
Publishing Company, (1958).
Thus, the superintendent must select
those applicants of which he can speak
favorably and send them to the SBC. This is
21
exactly what the Superintendent did. He
recommended four (4) applicants out of 10-12.
But, the Statute goes on to state that, AThe
Superintendent shall provide additional
applicants upon request when qualified
applicants are available.@ This indicates
that the Superintendent has no discretion.
If the SBC asks for additional applicants,
then the Superintendent must provide the
names of additional Aqualified@ applicants.
So, the question becomes when is an applicant
Aqualified?@
The Office of the Attorney General
opined that pursuant to KRS 160.345(2)(h) the
Superintendent must submit the names of all
applicants who meet the minimum legal and
school board policy requirements when the SBC
asks for them. OAG 95-10(1995)
The OAG opinion does not finally decide
the issue. The OAG had to issue its opinion
because there is an apparent conflict in the
law, and the citizens of the Commonwealth
needed legal guidance prior to a court
ruling. Thus, the opportunity has now arisen
when the Court can attempt to resolve this
conflict and have it subjected to the
scrutiny of an appellate decision that will
be binding on all school boards throughout
the Commonwealth.
The Legislature chose in drafting this
statute to use the word Aqualified@ rather
than Acertified.@ Kentucky Administrative
Regulations lay out the prerequisites for
principal certification. AA new applicant for
certification for school principal,...shall
successfully complete prerequisite
tests...prior to certification as a school
principal.@ 704 KAR 29:460 ' 1 (1). The
drafters of this KAR chose to talk about
Acertification@ rather than Aqualification.@
Webster=s Dictionary defines Aqualified@ as
Ahaving met conditions or requirements set, or
having the necessary or desirable qualities;
fit; competent.@ For one to meet the
requirements set would indicate a person
22
meeting all of the qualifications necessary
to be certified. That is, they meet the
minimum statutory and regulatory school board
policy requirements to be eligible for the
Board to legally hire the person.
On the other hand one possessing
desirable qualities, being fit, or competent
for a job implies a little more than merely
meeting the minimum statutory regulatory
school board policy requirements. Fitness
and competency require a person who can
exercise sound judgment when making
decisions. When recommending an applicant
for a principalship, the superintendent must
consider not only if the person meets the
minimum prerequisites for certification, but
must ask himself or herself whether that
person can make sound decisions.
In what context did the Legislature use
the word Aqualified@ in this statute?
Certification is a word of precision utilized
in KAR=s and statutes indicating that a person
possesses the basic minimum statutory,
regulatory and school board policy
requirements to fulfill a job. 704 KAR
20:400, 460, 710; KRS 161.027. The
Legislature chose to use the word Aqualified@
in the same statute [KRS 160.345(1)(h)] that
first uses the word Arecommended@ which is
clearly a discretionary function. It seems
unlikely that the Legislature would grant
discretionary powers to a superintendent to
assist a SBC in selecting a principal, then
negate that discretion by taking it away in
the next sentence. If the Legislature
intended to mean that the superintendent must
send the names of additional applicants that
were certified, then it is more likely they
would have used the word Acertified@ rather
than Aqualified@.
The Legislature recognizes that public
education involves shared responsibilities.
KRS 158.645. The SBC and superintendent must
each share in their responsibilities to
select the best person for principal among
23
the applicants. The Legislature designed a
process in which the parents, teachers and
superintendent each have a role in
determining who the principal will be at a
given school. First, the superintendent must
exercise his discretion in sending only those
names of applicants that meet the minimum
statutory, regulatory and school board policy
requirements to do the job, and that he/she
believes can do the best job for the school
system. Next, the SBC must exercise its
discretion in determining whom they desire to
be principal among the names initially sent
by the superintendent. If the SBC is not
satisfied with the applicants, then the SBC
can ask for the additional applicants. The
superintendent must then exercise his/her
discretion to provide additional applicants
only if the superintendent believes, in good
faith, that the applicant can do the job.
This process has the greatest success of
producing an applicant that can best perform
the duties of principal among the field of
applicants.
Of course the Court=s decision today
would leave open the possibility that an
unscrupulous superintendent could recommend
only one (1) person as his choice, claiming
he is the only one qualified, but that is not
what happened here. The SBC members had four
(4) applicants that the superintendent
thought were qualified. By the same token,
an unscrupulous SBC could refuse to make a
selection among every pick if the court were
to rule differently. Clearly the SBC and the
superintendent must perform their duties in a
good faith cooperative spirit to select a
principal.
It is the ruling of the Court that
Aqualified@ in the context of KRS
160.345(2)(h) means the applicant must meet
all statutory, regulatory and school board
policy requirements and be recommended by the
superintendent of the School Board before the
superintendent has the duty to provide the
24
name of the applicant upon request by the
SBC.
I agree with the trial court=s analysis on this issue
and, hence, find no error in its determination that an applicant
for a principalship must meet all necessary statutory,
regulatory and school board policy requirements and be
recommended by the superintendent in order to have the
applicant=s name forwarded to the SBC for consideration.
To do
otherwise, is to eliminate the superintendent from the hiring
process.
Why require the SBC to request more certified
applicants when all certified applications are eligible?
The
superintendent’s only duty according to the majority is to
forward the names of all certified applicants and let the SBC
make its decision.
With that said, I believe I must now specifically
address the majority opinion.
It appears that the majority’s
main concern is the perception that historically superintendents
throughout Kentucky were not interested in education but rather
favoritism and nepotism.
Maintenance of the superintendent’s
political dynasty was paramount and education of the masses a
distant second fiddle to his political power and control.
While
even I must concede that tales of such exploits dominate
Kentucky education history, I believe those situations to be in
the minority and not the general practice.
If one was to
believe the sentiment contained in the majority opinion, one
25
would wonder why the General Assembly continued to maintain the
position of superintendent following the Rose decision.
I
believe the majority does a great disservice to the hardworking, sincerely dedicated and concerned superintendents that
have faithfully served this Commonwealth in the past and
continue to do so today.
The vast majority of superintendents
in the past and those presently serving have struggled long and
hard to serve the children of Kentucky and provide them with the
best education possible despite the often insurmountable
historical, political, economical and social odds against them.
To strip the superintendent of the ability to have even minimal
input in the hiring of principals is to delegate them to mere
administrators and not educators.
KRS 160.370 sets forth the duties of the
superintendent.
Included in those enumerate duties is the
responsibility for the hiring and dismissal of all personnel in
the district.
KRS 160.380(2)(a), in relevant part, states,
“[a]ll appointments, promotions, and transfers of principals,
supervisors, teachers, and other public school employees shall
be made only by the superintendent of school, who shall notify
the board of the action taken.”
It is obvious that the
superintendent, as the executive agent of the local school
board, is primarily responsible for all employment related
issues within the district.
Even the statute in question, KRS
26
160.345(2)(h), empowers the superintendent with the authority to
submit a list of potential school personnel applicants to the
principal, who, after consultation with the SBC, will fill
vacancies.
The SBC has no power to request additional names to
fill these employment positions.
Yet, the majority gives the
SBC the ultimate authority to determine who is to be employed in
the trusted position of principal.
It is important to note that
the SBC is composed of two (2) parents, three (3) teachers, and
the principal or administrator.
See KRS 160.345(2)(a).
Thus,
the majority opinion gives the teachers, who must always have a
controlling membership of a SBC, the final say in who is to be
principal.
To me this amounts to allowing the fox to guard the
henhouse.
The superintendent who has numerous statutory duties
and who is subject to removal by the board for cause or
malfeasance as well as subject to numerous criminal penalties
under KERA enacted legislation has no authority to fill the most
trusted and important position in implementing school policy
(aside from the superintendent himself), but a mere majority of
three hired teachers does.
To me such an interpretation of
Rose, KERA, and KRS Chapter 160 is ludicrous.
I believe Greenup
Circuit Judge Lewis D. Nichols properly interpreted the terms
“recommend,” “qualified” and “certified” in his order addressing
KRS 160.345(2)(h) and in his determination that an applicant
27
must be qualified and recommended before the superintendent has
the duty to provide the name of the applicant upon request to
the SBC.
Therefore, I would affirm the trial court on this
issue.
COMBS, HUDDLESTON, McANULTY, AND SCHRODER, JUDGES,
CONCUR WITH THIS OPINION.
DYCHE, JUDGE, NOT SITTING.
BRIEF FOR APPELLANT:
Jeffrey S. Walther
Beth A. Bowell
Lexington, Kentucky
BRIEF AND ORAL ARGUMENT FOR
APPELLEES:
William H. Fogle
Mt. Sterling, Kentucky
ORAL ARGUMENT FOR APPELLANT:
Beth A. Bowell
Lexington, Kentucky
28
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