Who presented charges when Kentucky education investigators referred a school-council complaint for hearing?

Plain-English summary

The Kentucky Department of Education asked who should present charges at a Board of Education hearing after the Office of Education Accountability (OEA) referred a complaint about school-based decision making. The Attorney General concluded that OEA could investigate, try to resolve the matter and refer it, but could not prosecute charges before an executive-branch board. OEA was part of the Legislative Research Commission, and the opinion applied Kentucky’s separation-of-powers rule to keep the legislative agency from exercising executive enforcement power.

The opinion assigned the presentation role to the Commissioner of Education, the Board’s executive and administrative officer. It said the Commissioner had to appoint or hire an attorney for the hearing. The analysis distinguished OEA’s referral authority from the Board’s duty to conduct the hearing.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could the Office of Education Accountability prosecute a complaint it investigated? A: The Attorney General said no. As a legislative agency, OEA could investigate and refer a matter but could not present charges in an executive-branch disciplinary hearing.

Q: Who presented a referred school-council case to the Kentucky Board of Education? A: The opinion assigned that responsibility to the Commissioner of Education, acting through an appointed or hired attorney.

Q: Did the Commissioner need to be named in the complaint statute to perform that role? A: The opinion said no. The Commissioner’s general authority as the Board’s executive and administrative officer covered execution of the Board’s hearing function.

Background and statutory framework

KRS 160.345(9) allowed OEA to investigate certain school-based decision-making complaints and send unresolved matters to the Kentucky Board of Education for a hearing. KRS 7.410 placed OEA within the legislative branch. The opinion applied Sections 27 and 28 of the Kentucky Constitution to reject legislative-branch prosecution and relied on KRS 156.148(3), along with executive-department attorney provisions, for the Commissioner’s role.

Citations and references

Statutes: KRS 160.345(9); KRS 7.410; KRS 156.148(3); KRS 12.210; KRS 12.220(1).

Constitution: Sections 27 and 28 of the Kentucky Constitution.

Prior AG opinion: OAG 91-222.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_f178554e-71d3-461d-b646-5edda4e7b992/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_f178554e-71d3-461d-b646-5edda4e7b992

Original opinion text

OAG 02-4
May 3, 2002
Subject:

Disciplinary Hearings pursuant to KRS §160.345

Requested by:

Kevin Noland, Deputy Commissioner and General
Counsel
Kentucky Department of Education

Written by:

Stuart W. Cobb, Assistant Attorney General

Syllabus:

The Kentucky Board of Education has the obligation
through its executive officer the Commissioner of Education to appoint or hire an attorney to present a case referred pursuant to KRS § 160.345 by the Office of Education Accountability, which is barred by the separation of powers doctrine from prosecuting the charges.

Statutes construed:
§§ 27-28 of the Kentucky Constitution, KRS §
7.410; KRS § 12.210, KRS § 12.220, KRS § 15.020,
KRS § 156.132, KRS § 156.148; KRS § 160.345
OAGs cited:

91-222

Opinion of the Attorney General
You have asked the Attorney General’s opinion as to what entity
has the authority or obligation to present charges referred by the Office of Education Accountability (“OEA”) to the Board of Education pur-

OAG 02-4
Page 2

suant to KRS § 160.345(9)1. In your request for an opinion, you referred to three government entities which may have the responsibility to present the charges before the Board of Education: the OEA; the Chief State School Officer, i.e., the Commissioner of Education (“Commissioner”)2; and the Attorney General. It is the opinion of the Attorney General that first, the OEA is constitutionally barred from presenting the charges and that the Commissioner has the responsibility to appoint or hire an attorney to present the charges. KRS § 160.345(9)(b) gives the OEA the authority to investigate complaints of violations of KRS § 160.345(9)(a), and to resolve the complaint, or forward the matter to the Board of Education. The OEA was created pursuant to KRS § 7.410 as a part of the Legislative Research Commission, and as such it is a legislative agency. As discussed in OAG 91-222, while the OEA has the power to investigate wrongdoing, it has no authority to take corrective action, due to the strict separation of powers between the legislative, executive and judicial branches of state government enshrined in §§ 27-28 of the Kentucky Constitution. Legislative Research Commission v. Brown, Ky., 664 1

(a) No board member, superintendent of schools, district employee, or member of a

school council shall intentionally engage in a pattern of practice which is detrimental to the successful implementation of or circumvents the intent of school-based decision making to allow the professional staff members of a school and parents to be involved in the decision making process . . . (b) An affected party who believes a violation of this subsection has occurred may file a written complaint with the Office of Education Accountability. The office shall investigate the complaint and resolve the conflict, if possible, or forward the matter to the Kentucky Board of Education. (c) The Kentucky Board of Education shall conduct a hearing in accordance with KRS Chapter 13B for complaints referred by the Office of Education Accountability. (d) If the state board determines a violation has occurred, the party shall be subject to reprimand. A second violation of this subsection may be grounds for removing a superintendent, a member of a school council, or school board member from office or grounds for dismissal of an employee for misconduct in office or willful neglect of duty. 2

The commissioner of education became the chief state school officer effective Janu-

ary 1, 1991. KRS § 156.148(1).

OAG 02-4
Page 3

S.W.2d 907 (1984), states that the LRC, of which the OEA is a part, cannot, “because of the separation of powers doctrine, exercise any supervision over the executive branch” Id at 916. The Attorney General is unaware of any authority that would authorize a legislative agency to prosecute charges in an executive branch administrative hearing. Thus the OEA cannot prosecute a case to have an executive branch employee disciplined or removed for violation of KRS § 160.345(9)(a). KRS § 160.345(9)(c) states, “The Kentucky Board of Education shall conduct a hearing in accordance with KRS Chapter 13B for complaints referred by the Office of Education Accountability.” In your request for an opinion, you expressed doubt that the Commissioner has the authority to present the charges referred by the OEA because he is not expressly authorized to do so by KRS § 160.345. However, presenting charges brought before the Board of Education pursuant to KRS § 160.345 falls within the authority granted the Commissioner by KRS § 156.148(3)3. KRS § 160.345(9)(c) places the function of conducting a KRS Chapter 13B hearing under the management of the Board of Education, of which the Commissioner is the executive and administrative officer. As such, the Commissioner is required to execute the administrative function of the Board of conducting such hearings. KRS § 12.210 authorizes executive branch departments to hire attorneys with the approval of the Governor, and KRS § 12.220(1) authorizes said attorneys to, “represent the department in the trial and argument of any cases and proceedings in any and all courts, and before boards, governmental agencies and tribunals . . . whenever such department or any officer or employee thereof is a party in interest or the official rights, powers or duties of the department or of any officer or employee thereof are directly or indirectly affected.” In your request for an opinion, you suggested that because the Commissioner is expressly authorized to bring charges before the 3

The commissioner of education shall be the executive and administrative officer of

the Kentucky Board of Education in its administration of all educational matters and functions placed under its management and control. He shall carry out all duties assigned to him by law; shall execute under the direction of the state board the educational policies, orders, directives, and administrative functions of the board; and shall direct the work of all persons employed in the Department of Education.

OAG 02-4
Page 4

Board of Education by KRS § 156.132, the fact that he is not so expressly authorized by KRS § 160.345 evidences an intent by the General Assembly that the Commissioner not participate in the hearing of charges brought pursuant to KRS § 160.345. However, KRS § 156.132 does not expressly authorize the Commissioner to participate in a KRS Chapter 13B hearing; it only provides that the Commissioner “may recommend by written charges the removal by the Kentucky Board of Education of any district board member, superintendent of schools, or other public school officer”. Since it is the OEA which refers charges of violations of KRS § 160.345 to the Board of Education, there is no need to mention the Commissioner in KRS § 160.345. In both KRS § 160.345 hearings and KRS § 156.132 hearings, the Commissioner’s role in the hearings is authorized not by those statutes, but by the grant of authority vested in the Commissioner as the executive and administrative officer of the Board of Education by KRS § 156.148(3). Albert B. Chandler III Attorney General

Stuart W. Cobb
Assistant Attorney General
c:

Robert S. Sherman
Director, Legislative Research Commission
700 Capitol Avenue, Ste 300
Frankfort, KY 40601
John Schaaf
Legislative Research Commission
700 Capitol Avenue, Ste 300
Frankfort, KY 40601
Ken Henry, Ph.D.
Director, Office of
Education Accountability
Capitol Annex

OAG 02-4
Page 5

Frankfort, KY 40601
Joy Arnold
Kentucky Education Association
401 Capitol Avenue
Frankfort, KY 40601