Kentucky Advisory Opinions November 12, 1997: OAG 97-036 (November 12, 1997)

OAG 97-036.

In 1992, the General Assembly added this sentence to KRS 161.350(2): "Following appointment, the superintendent shall establish residency in Kentucky." We have been asked whether this provision applies to all superintendents, or only to superintendents appointed after the effective date of the legislation.

The words of the statute provide no clue to the legislature's intent. Another sentence in the same subsection exhibits the kind of precision that renders opinions such as this one unnecessary: "A superintendent candidate who is to begin his duties after June 30, 1994, shall successfully complete the training program and assessment center process within one (1) year of assuming his duties as superintendent." Here we have a clear statement of the class on which the duty is imposed and of the time during which the duty is to be performed. In the 1996 amendment-"Following appointment, the superintendent shall establish residency in Kentucky."-we have neither.

We are asked to find that application of the 1996 amendment to superintendents appointed before the effective date of the act would constitute a retroactive construction of the statute. Because KRS 446.080(3) states that statutes shall be presumed not to operate retroactively, it is suggested to us that the 1996 law does not apply to superintendents appointed before the law was enacted.

We do not agree that the question before us involves a retroactive application of the statute. The words retrospective and retroactive, themselves basically imprecise, do not describe every law that affects actions taken in the past. Rather,

they describe acts which operate on transactions which have occurred or rights and obligations which have existed before passage of the act. Although court opinions often designate statutes as being either prospective or retrospective, the statutes in fact are often not susceptible to such clear, definite, and all-embracing characterizations as that. Many statutes are in various respects both prospective and retrospective. Characterization thus may do nothing more than reflect a judgment concerning validity or interpretation, arrived at on other grounds.

C. Dallas Sands, 2 Sutherland Statutory Construction 41.01 (Callaghan, 4th ed 1973).

The 1996 amendment to KRS 160.350(2) does not impose a duty that must have been performed in the past; it imparts a present duty. That is to say, the statute does not state that all superintendents who failed to establish residency in Kentucky within a reasonable time following appointment are ineligible to hold office; that would be a truly retroactive law in the sense that it would be too late for the superintendents to comply with the duty that the law imposes. In contrast, the statute imposes a present duty on superintendents to establish residency in Kentucky. No time limit is given for them to perform this duty, suggesting that a reasonable time is allowed.

Construing the statute to exempt superintendents appointed before 1996 would require reading words into the statute that are not there. The statute contains no grandfather clause, and we will not create one. It is our opinion that all public school superintendents must establish residency in Kentucky.

Albert B. Chandler III

Attorney General

Ross T. Carter

Assistant Attorney General