Personnel Essentials Presented by V. Wayne Young Executive Director and General Counsel Kentucky...

Personnel EssentialsPersonnel Essentials

Presented by Presented by

V. Wayne YoungV. Wayne Young

Executive Director and General CounselExecutive Director and General Counsel

Kentucky Association of School AdministratorsKentucky Association of School Administrators

November 2008November 2008

Apr 19, 2023 2

Legal DisclaimersLegal 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.

Apr 19, 2023 3

Key Things to Remember re: Key Things to Remember re: KRS 161.720KRS 161.720

A certified employee is an employee who holds a position for which the state of Kentucky requires a certificate (see KRS 161.020 and 161.011).

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.

Apr 19, 2023 4


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 161.740

Apr 19, 2023 5

Key Things to Remember re:Key Things to Remember re:KRS 161.740KRS 161.740

“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.”

Apr 19, 2023 6

Key Things to Remember re: Key Things to Remember re: KRS 161.740 (cont’d)KRS 161.740 (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)

Apr 19, 2023 7


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.

Apr 19, 2023 8


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.

Apr 19, 2023 9


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.”

Apr 19, 2023 10


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.

Apr 19, 2023 11


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.

Apr 19, 2023 12


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.

Apr 19, 2023 13


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.

Apr 19, 2023 14


The reasons for termination listed in subsection (7) follow those listed for certified employees in KRS 161.790, 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.

Apr 19, 2023 15


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.

Apr 19, 2023 16


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.

Apr 19, 2023 17


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.

Apr 19, 2023 18


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.

Apr 19, 2023 19


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 161.765).

Demotion of administrators and reduction of responsibility for teachers are within the sound discretion of the superintendent.

Apr 19, 2023 20


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.

Apr 19, 2023 21


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.

Apr 19, 2023 22


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.”

Apr 19, 2023 23

Classified RIF – KRS 161.011(8)Classified RIF – KRS 161.011(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.

Apr 19, 2023 24

Classified RIF – KRS 161.011(8)Classified RIF – KRS 161.011(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.

Apr 19, 2023 25

Classified RIF – KRS 161.011(8)Classified RIF – KRS 161.011(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.

Apr 19, 2023 26

Classified RIF – KRS 161.011(8)Classified RIF – KRS 161.011(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.

Apr 19, 2023 27

Certified RIF – KRS 161.800Certified RIF – KRS 161.800 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.

Apr 19, 2023 28

Certified RIF – KRS 161.800Certified RIF – KRS 161.800 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.

Apr 19, 2023 29

Certified RIF – KRS 161.800Certified RIF – KRS 161.800 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.

Apr 19, 2023 30

Certified RIF – KRS 161.800Certified RIF – KRS 161.800 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 161.760 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.

Apr 19, 2023 31

Loose Ends and Parting WordsLoose 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 161.760).

Extra duties do not constitute a position or vacancy in and of themselves.

Apr 19, 2023 32

Loose Ends and Parting WordsLoose 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.

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