Kentucky Advisory Opinions September 18, 2002: OAG 02-006 (September 18, 2002)

OAG 02-006.

OPINION OF THE ATTORNEY GENERAL

The Kentucky Education Association requests the opinion of the Attorney General on the following questions regarding KRS 160.352(3)(a):

Does the language "elected by the teachers in the district;" permit the local Board of Education or its agent to restrict nomination to the ballot to nominations by each school, limited to nominations from that faculty?

Does the same language permit the division of the district into sections for the purpose of electing a teacher from each division to be on the ballot?

As the teachers are to elect their representatives to the superintendent selection committee, does that not include the responsibility for teachers to establish election procedures and conduct the election?

SUMMARY

Although local school boards must establish rules and procedures governing superintendent selection committees, they are not authorized by Kentucky law to establish rules and procedures governing the election of teacher representatives to those committees.

ANALYSIS

The authority of local boards of education is established by statute. Chapter 160 of the Kentucky Revised Statutes provides that each board of education is a "body politic and corporate with perpetual succession. " Id. The broad authority of school boards is described by statute as follows:

It may sue and be sued; make contracts; expend funds necessary for liability insurance premiums and for the defense of any civil action brought against an individual board member in his official or individual capacity, or both, on account of an act made in the scope and course of his performance of legal duties as a board member; purchase, receive, hold and sell property; issue its bonds to build and construct improvements; and do all things necessary to accomplish the purposes for which it is created.

KRS § 160.160. A local school board, therefore, is a "body corporate" that is granted only the authority necessary to perform the duties assigned to it by the Kentucky General Assembly.

Overall, school boards have control and management of the public schools in their districts. KRS § 160.290(1). The General Assembly provides that a local board of education "exercise generally all powers prescribed by law in the administration of its public school system." Id. To that end, KRS Chapter 160 authorizes boards to establish schools, courses and other services necessary for the education and welfare of students.

Id. Boards fulfill this statutory duty by adopting rules, regulations and bylaws to regulate meetings, transact business, and establish qualifications and duties of its employees and pupils. KRS § 160.290(2).

Each board also is required to "appoint a superintendent of schools after receiving the recommendations of a screening committee" under KRS § 160.290(2). The composition of the superintendent screening screening committee is described as follows:

A screening committee shall be composed of:

Two (2) teachers, elected by the teachers in the district;

One (1) board of education member, appointed by the board chairman;

One (1) principal, elected by the principals in the district;

One (1) parent, elected by the presidents of the parent-teacher organizations of the schools in the district; [and]

One (1) classified employee, elected by the classified employees in the district . . . .

KRS § 160.352(3) (emphasis added). The relevant question is whether this statute authorizes local school boards to establish the rules and procedures by which teacher representatives are elected to the committee.

When determining the scope and purpose of a statute, courts "must rely on the plain language of the enactment," and the court may not "add benefits or provisions that the legislature has not seen fit to provide." Commonwealth v. Garnett, Ky.App., 8 S.W.3d 573 (1999); Riddle v. Scotty's Development, Inc., Ky.App., 7 S.W.3d 385 (1999); Posey v. Powell, Ky.App., 965 S.W.2d 836 (1998).

The plain language of KRS § 160.352(3) states that the two teacher representatives on the superintendent selection committee shall be "elected by the teachers in the district." Id. The plain language of this statute indicates that the teachers are responsible for electing their own representatives to the committee.

Although local school boards are required by this statute to establish rules and procedures governing the committee itself, that statute does not also authorize local school boards to establish the rules and procedures governing the election of teacher representatives.

This interpretation comports with the language of the statute as a whole. In the same provision governing the superintendent selection committee described above, the General Assembly specifically provides for the election of a minority parent representative to the committee " in an election conducted by the local school board ."

KRS § 160.352(3)(f). This precise language is a clear directive from the General Assembly that rules and procedures governing the election of the minority parent are to be established by the local school board. If the General Assembly intended to provide the local school boards the identical authority over teacher elections, they would have used the same precise language to achieve that result. This interpretation of KRS § 160.352(3) reflects a primary Kentucky rule of statutory interpretation providing that "where particular language is included in one section of a statute, but omitted in another section of the same statute, it is generally presumed that the legislature acted intentionally and purposefully in the disparate inclusion or exclusion. Palmer v. Commonwealth, Ky. App., 3 S.W. 3d 763 (1999); Liberty National Trust Co. of Louisville v. George, 70 B.R. 312 (W.D.Ky. 1987); Commonwealth v. Taylor, Ky., 945 S.W.2d 420 (1997).

Therefore, KRS § 160.352 unambiguously provides that while the local school boards establish the rules and procedures governing the superintendent selection committee, the election of the teacher representatives to that committee must be conducted under the sole authority of the teachers themselves.

Albert B. Chandler III

Attorney General

Jennifer Carrico

Assistant Attorney General