Personnel Essentials Presented by V. Wayne Young Executive Director and General Counsel Kentucky Association of School Administrators November 2008

August 152 Legal Disclaimers  In areas without a clear answer in statute or regulation, I will share with you my best INTERPRETATION. I could be wrong (not likely), or others could simply disagree, in which case they are wrong (more likely).  Some of those same areas are addressed in local board policies, which may differ from my interpretation. Make certain you check!  Get good advice, then make a decision you will be willing to explain and defend later.

August 153 Key Things to Remember re: KRS  A certified employee is an employee who holds a position for which the state of Kentucky requires a certificate (see KRS and ).  All certified employees, with the exception of the superintendent, are “teachers.”  An “administrator” is a teacher who devotes a majority of his or her time to service in one of the categories described in subsection (8). These are very broad.

August 154 Key Things to Remember re: KRS  The definitions of “administrator” and of a “certified employee” do not match. What is a certified employee who holds a classified administrative position?  A classified employee cannot be an administrator under these definitions, and therefore has no demotion protection.  A reduction in duties, or salary, or both, of an administrator, constitutes a demotion.  Potential Pitfall! - subsection (6), as it applies under KRS

August 155 Key Things to Remember re: KRS  “Continuing contract status” (tenure) is a function of law; it cannot be withheld if a teacher is entitled to it, and cannot be granted if he or she is not entitled to it.  A teacher’s entitlement to tenure is fact based; you must have an accurate employment history in order to be certain about a teacher’s contract status.  Be aware of the “four out of six” rule, and the requirement to be “currently employed.”

August 156 Key Things to Remember re: KRS (cont’d)  A “year,” for purposes of attaining tenure, is the equivalent of at least 140 six-hour days during a school year (note exceptions for military leave and service in the legislature).  A teacher must “assume his duties” in the qualifying year in order to attain tenure.  If your district does not already require the one-year probationary period, start doing so.  Potential Pitfall! - subsections (1)(a) & (d)

August 157 Key Things to Remember re: KRS  There is never any requirement to re-employ any limited contract teacher.  All limited contracts are created equal.  Nonrenewal of a limited contract need not be performance related. It can be for any reason that is not discriminatory or unconstitutional.  Consider not including the “grounds” for nonrenewal in the letter of notification.  Try to avoid sending nonrenewal notices to all limited contract teachers.

August 158 Key Things to Remember re: KRS (cont’d)  If asked for grounds, be as specific and accurate as possible.  If grounds are performance-based, reference specific incidents or deficiencies, rather than “bad evaluation” or “doesn’t meet district standards.”  Potential Pitfall! – Evaluation appeals  Potential Pitfall! – “meets/ doesn’t meet standards;” add a disclaimer if you use this.

August 159 Key Things to Remember re: KRS (cont’d)  The “gap” between May 15 and June 30 is a period in which notice of nonrenewal can be withdrawn without creating a vacancy.  Disregard the “urban legend” of actually having to touch the teacher with the nonrenewal notice; the statute says it must be “presented.”  However, a recent court case on a related topic equates “notice” to “receipt.”

August 1510 Key Things to Remember re: KRS  Practically everything required of a local district relating to employment of classified employees is contained in this statute.  Be careful not to “over read” this statute; that is, to view it to require things of you that, in reality, it does not.  This statute contains provisions for both nonrenewal and reduction-in-force (RIF) for classified employees; for certified employees, the statutes are separate.

August 1511 Key Things to Remember re: KRS (cont’d)  There is never a requirement to re-employ any classified employee who has not completed four years of “continuing active service.”  For classified employees, both part-time service and all types of leaves of absence count toward the calculation of the four- year threshold. This is different than for certified employees, where neither of these are included in the calculation.

August 1512 Key Things to Remember re: KRS (cont’d)  As with certified employees: 1. A decision to nonrenew a classified employee need not be performance-based; 2. Consider not including the reasons for nonrenewal in the notice letter; 3. If asked for reasons, be both specific and accurate; 4. Try to avoid sending nonrenewal notices to all sub 4-year classified employees.

August 1513 Key Things to Remember re: KRS (cont’d)  Classified employees who have more than 4 years of continuous active service may also be nonrenewed, but only for the reasons listed on subsection (7) of the statute.  Any classified employee may be terminated for the reasons listed in subsection (7).  Based on the Fankhauser case, it is wise to treat a nonrenewed 4-year plus employee the same as a terminated employee; that is, afford the employee a due process hearing.

August 1514 Key Things to Remember re: KRS (cont’d)  The reasons for termination listed in subsection (7) follow those listed for certified employees in KRS , but add an additional category: “other reasonable grounds which are specifically contained in board policy.”  Two other “reasonable grounds” come immediately to mind: changes in board or council staffing policies, and reduction or elimination of program offerings.

August 1515 Key Things to Remember re: KRS (cont’d)  This option may become important when deciding whether to nonrenew/terminate a classified employee as opposed to declaring a RIF (more on RIF’s later).  The key difference is that employees who are RIF’d have a right of recall; those who are nonrenewed or terminated do not.  Potential Pitfall! – this distinction involves some hair-splitting, and would require due process hearings for all affected employees.

August 1516 Key Things to Remember re: KRS (cont’d)  Potential Pitfall! – don’t outsmart yourself. The more a nonrenewal/termination of a 4- year plus classified employee appears to be based on a reason listed in subsection (8) rather than subsection (7), the more it looks like a RIF.  Only the superintendent can declare a RIF, but a RIF is a RIF, even if you don’t call it one (“If it looks like a duck...”).  Potential Pitfall! - Don’t try to manipulate the system. It will come back to haunt you.

August 1517 Key Things to Remember re: KRS  Generally, reductions in salary affect the number of extended employment days, or extra service pay, or both.  A salary reduction can only occur in two ways – as “part of a uniform plan affecting all teachers in the entire district;” or if “there is a reduction of responsibilities.”  Pay attention to deadlines – “uniform” (generally group) reductions require 45 days notice; “responsibility” (generally individual) reductions require 90 days.

August 1518 Key Things to Remember re: KRS  Failure to meet a deadline entitles the employee to the higher salary for one year.  A uniform plan affecting all teachers in the entire district need not be any of those.  To be uniform, a plan must affect similarly situated teachers or administrators similarly.  Uniform: days, $$$, percentages of salary.  All, entire: those in a clearly distinct, reasonable, and identifiable category.  A uniform plan may affect only one person.

August 1519 Key Things to Remember re: KRS  A reduction of responsibility, accompanied by a reduction in salary, is not a demotion, unless the individual is an administrator. No hearing or other due process is required.  Reasons for the reduction in salary must be given; there is no requirement that reasons for the reduction of responsibility be given (but see KRS ).  Demotion of administrators and reduction of responsibility for teachers are within the sound discretion of the superintendent.

August 1520 Key Things to Remember re: KRS  Employment of a teacher is employment in the district only; there is no entitlement to a particular position or assignment.  Assignment to an administrative position is always a one-year assignment, subject to either renewal or revocation. There is no property right or other entitlement.  Some administrators are entitled to a review of their demotion by the board of education.

August 1521 Key Things to Remember re: KRS  In order to be covered by the provisions of this statute, an administrator must have completed at least three consecutive years of service as an administrator in that district. It does not apply at the end of the third year of service.  The service as an administrator need not be in the same position for all three years; it must simply be service as an administrator in that district.

August 1522 Key Things to Remember re: KRS  The statute requires four specific written notices – two by the superintendent, two by the administrator – with specific timelines.  Failure to provide any one of the four notices terminates the demotion proceeding, in favor of the party to whom notice was to be given.  Any superintendent who does not discuss a potential demotion with the board members in advance is “working without a net.”

August 1523 Classified RIF – KRS (8)  A RIF of classified staff may be declared only by the superintendent, based on reduced funding or enrollment, changes in district or school boundaries, or “other compelling reasons as determined by the superintendent.”  These reasons are far broader than the grounds which support a RIF of certified employees.  A RIF only occurs when a 4-year plus classified employee cannot be placed.

August 1524 Classified RIF – KRS (8)  The superintendent is entitled to take both seniority and qualifications into account equally when deciding which employees to RIF. Thus, a less senior, more qualified employee may be retained at the expense of a more senior, less qualified employee.  In addition, an employee qualified for more than one job may need to be moved to a different category to avoid a RIF. All options must be considered.

August 1525 Classified RIF – KRS (8)  Seniority is defined in Subsection (1) (b), and includes both part-time employment and any leaves of absence.  Seniority is in the district, regardless of positions held, and is taken into account only when there is a RIF.  A RIF may appear to occur on a school-by- school basis, but it is in reality and application a districtwide event.

August 1526 Classified RIF – KRS (8)  The term “qualifications” is not defined, but would clearly include degrees, advanced or specialized training, licensure, ability to do multiple jobs, and maybe more. Use criteria you are willing to defend and explain.  Classified employees who are RIF’d have the right of recall in order of seniority.  There is no specified time period at which the right of recall expires. Reasonable efforts to contact an employee entitled to recall should be sufficient for compliance.

August 1527 Certified RIF – KRS  A certified RIF can only be declared by the superintendent.  A certified RIF does not occur until a tenured teacher cannot be placed in the district.  A certified RIF can only be based on decreased enrollment, suspension of schools, or changes in district boundaries.  Decreased enrollment can be either in the district or in an identifiable program.

August 1528 Certified RIF – KRS  Seniority means seniority in the district.  A RIF may appear to occur on a school-by- school basis, but in reality and application it is a districtwide event.  A continuing contract is a constitutionally protected property right that cannot be extinguished by the actions of a school council.  All certifications held by a teacher must be considered before a RIF can occur.

August 1529 Certified RIF – KRS  Administrators are teachers, and any whose positions are eliminated or who are demoted must be placed in the pool with all other teachers for ultimate placement.  Transfers may be required in order to avoid a RIF, and can occur without the agreement of the council or principal.  Don’t forget “invisible” employees – those on leave, disability retirement, or MOA’s.

August 1530 Certified RIF – KRS  In a RIF, it is possible that some limited contract teachers will remain employed while tenured teachers are suspended.  It is permissible to reduce teachers from full-time to part-time to avoid a RIF (see KRS on salary reduction).  RIF’d teachers have a right recall in order of seniority.  There are many opinions on this subject. Most will be wrong.

August 1531 Loose Ends and Parting Words  Extra duty pay is a function of regulation, 702 KAR 3:070, Section 3.  Extra duties are typically “attached” to a position, and can be diminished or removed with little or no fanfare (other than compliance with KRS ).  Extra duties do not constitute a position or vacancy in and of themselves.

August 1532 Loose Ends and Parting Words  Avoid the temptation to pursue the path of least resistance and use one or more of these procedures in lieu of a more appropriate, albeit more difficult path. The words “pretext” and “retaliation” are not your friends.  Resign yourself to the fact that, in the end, someone will be unhappy.