Mississippi Advisory Opinions October 23, 2009: AGO 2009-00529 (October 23, 2009)

Advisory Opinion Text

Dr. Benny A. Wright

Post Office Box 18491

Natchez, Mississippi 39122

Dear Dr. Wright:

Attorney General Jim Hood has received your request for an official opinion from this office and has assigned it to me for research and reply.

As the Assistant Secretary for the Natchez Adams School District Board of Trustees, you ask the following:

Issue I :

Does the following policy violate any statute: “The principal of any school building will have the authority to recruit and interview teachers under his or her supervision, and present selected candidates to the superintendent and the Board of Trustees. The superintendent will make a recommendation to the board of approved candidates and reasons for disapproval of non-recommended candidates.”

Issue II

Under Mississippi school codes, the superintendent makes recommendations to the Board of Trustees as to who the board should employ. However, if the superintendent requests that the board assist him by naming persons the board will approve for a specific position, does the Board of Trustees violate the Mississippi School Codes by naming a person to fill such a position or positions?

Response

1. The policy violates Section 37-9-17. Section 37-9-17 does not require the superintendent to give reasons for his recommendations. It does require the Board to have good reason to reject a recommendation by the superintendent.

2. Yes. There is no authority for a school board to both recommend and employ teachers.

Applicable Law and Discussion

Section 37-9-17 of the Mississippi Code, Annotated , governs the hiring of teachers. The statute provides, in part:

On or before April 1 of each year, the principal of each school shall recommend to the superintendent of the local school district the licensed employees or non-instructional employees to be employed for the school involved except those licensed employees or non-instructional employees who have been previously employed and who have a contract valid for the ensuing scholastic year. If such recommendations meet with the approval of the superintendent, the superintendent shall recommend the employment of such licensed employees or non-instructional employees to the local school board, and, unless good reason to the contrary exists, the board shall elect the employees so recommended. If, for any reason, the local school board shall decline to elect any employee so recommended, additional recommendations for the places to be filled shall be made by the principal to the superintendent and then by the superintendent to the local school board as provided above.

Regarding your first question, this office has consistently held that under the two tiered

recommendation system adopted by the Mississippi Legislature, the building principal and the superintendent of a school district recommend the employment of teachers and the school board acts upon the recommendations by either approving or disapproving same. MS AG Op., Lowrey (July 31, 1998). It is the Board that must have good reason to reject any recommendations.

Your second inquiry presents a scenario where the Superintendent requests the Board of Trustees assistance in naming a candidate for a specific position. The previously quoted Attorney General opinion includes and incorporates the following relevant opinions. MS AG Op., Shelton (February 20, 1980) states that the school board only has the authority to elect or not elect the names submitted to it by the superintendent of the school district. MS AG Op., Ladner (May 22, 1980) states that a school board may not rehire a principal who resigned absent recommendation of the superintendent. MS AG Op., Johnson (July 25, 1991) states that the authority to recommend employment of an assistant superintendent rests with the superintendent. Finally, in MS AG Op., Hand (February 2, 1995) this office stated that a school board receives and acts on recommendations of the superintendent in personnel matters. The position of this office remains that the Board of Trustees may receive a recommendation but may not provide a recommendation. Such is the responsibility of the Superintendent as set out in the Mississippi Code.

Conclusion

Under the two tiered recommendation system adopted by the Mississippi Legislature, the principal and the superintendent of a school district recommend the employment of teachers and the school board acts upon the recommendations by either approving or disapproving the submissions. Mississippi Code Annotated Section 37-9-17 clearly states that the superintendent has the discretion in determining whom to recommend although he is limited in his recommendations to those included in the lists from the principal of each school. It is the duty of the district superintendent to recommend to the school board all teachers having the necessary qualifications, ability and character. There is no authority for a school board to both recommend and employ teachers.

If we may be of further service, please let us know.

Very truly yours,

Jim Hood, Attorney General.

Raina Anderson Lee, Special Assistant Attorney General.