Could Kentucky's community college board abolish tenure for faculty hired after July 2009?

Plain-English summary

Kentucky's Attorney General concluded that the Kentucky Community and Technical College System Board of Regents could not eliminate tenure for regular full-time faculty hired after July 1, 2009. KRS 164.5807(3)(b) said new employees without tenure “shall earn tenure” under policies set by the board. The AG read that language as requiring some way for new faculty to earn permanent security in their academic positions.

The board had broad power over employment policies and could establish procedures and standards for how faculty earned tenure. But the AG said that general authority could not override the statute's specific tenure requirement. Its March 2009 term-contract policy was contrary to KRS 164.5807(3)(b) to the extent it removed tenure for post-July 2009 faculty. The opinion expressly focused on regular full-time faculty; it did not decide the separate argument about KRS 164.5805(1)(d)2.

Currency note

This opinion was issued in 2009. 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 KCTCS replace tenure with term contracts for all newly hired regular faculty? A: The AG said no. The board's policy conflicted with KRS 164.5807(3)(b) insofar as it eliminated tenure for faculty hired after July 1, 2009.

Q: Could the Board of Regents still set tenure requirements? A: Yes. The opinion said the board could establish the procedures and standards by which faculty earned tenure, but had to leave tenure available.

Q: Did the opinion decide the status of temporary or part-time faculty? A: No. A footnote limited its analysis to the statute's application to regular full-time faculty.

Background and statutory framework

The KCTCS board revised its employment policy in March 2009 to replace tenure for later hires with term-contract and at-will categories. The system argued that statutes giving its board exclusive control over appointments and personnel let it make that change. The AG instead applied the more specific KRS 164.5807(3)(b), which said new employees without tenure would earn tenure under the board's new policies. It harmonized the provisions by preserving the board's authority to set standards while rejecting a policy that abolished tenure entirely.

Citations and references

• KRS 164.5807(3)(b): specific tenure requirement controlling the opinion.
• KRS 164.365(1): broad governing-board employment authority discussed by the AG.
• OAG 01-5: earlier opinion on the board's authority within statutory limits.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_c2f77512-0422-4407-9d61-9959af725a14/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_c2f77512-0422-4407-9d61-9959af725a14

Original opinion text

OAG 09-008

September 21, 2009

Subject: Whether the Board of Regents of the Kentucky Com- munity and Technical College System may, consistent with KRS 164.5807(3)(b), eliminate faculty tenure for future hires.

Requested by: Representative Rick Nelson 87 Legislative District th

Written by: James M. Herrick
Assistant Attorney General

Syllabus: Since KRS 164.5807(3)(b) requires that new KCTCS faculty be able to earn tenure, the Board of Regents lacks the authority to eliminate tenure.

Statutes construed: KRS 164.350(1)(b), KRS 164.360(1)(b), KRS 164.365(1), KRS 164.365(2), KRS 164.5805(1)(d)(2), KRS 164.5807(1), KRS 164.5807(3)(b)

OAG cited: OAG 01-5

Opinion of the Attorney General

The Kentucky Community and Technical College System (“KCTCS”) was created in 1997 by legislation combining Kentucky’s technical college system (“Kentucky Tech”), till then operated by the Cabinet for Workforce Development, with the University of Kentucky Community College System. Power to govern the newly-formed sys- tem was vested in the KCTCS Board of Regents. OAG 09-008 Page 2

The new personnel system for KCTCS was created as part of KRS Chapter 164. Faculty who had been part of the Kentucky Tech person- nel system governed by KRS Chapter 151B retained their tenure (re- ferred to as “continuing status” in KRS 151B.010(7)) 1 if they had earned it, and if still working toward tenure they were given the option by KRS 164.5805(1)(d)2 of completing that process under the Chapter 151B procedures:

Employees who have earned continuing status as defined in KRS 151B.010 … shall be provided the same standing.
Those employees who are transferred and are in the process of earning continuing status … shall earn their standing based on the rules that were governing them on June 30, 1998, in [the Kentucky Tech system]. New em- ployees within the system shall earn status based on the new policies established by the board[.]

KRS 164.5805(2) provides that “[n]ew employees hired after July 1, 1997, in the Kentucky Community and Technical College System shall be governed by the rules and regulations established by the board.”

Likewise, community college faculty who had earned tenure un- der the former University of Kentucky rules retained that tenure, and those who had not were able to continue earning their tenure under the University procedures then in effect. KRS 164.5807(3) states in part as follows:

Employees in the University of Kentucky Community Col- lege System as of the effective date of the transfer of the management responsibilities of the University of Kentucky Community College System to the Kentucky Community and Technical College System shall be governed by the Uni- versity of Kentucky administrative regulations as of the ef-

1
“‘Continuing status’ means the acquisition of tenure with all rights and privileges granted by the provisions of this chapter which must be preceded by four (4) years of successful employment.” KRS 151B.070(3) provides that Kentucky Tech faculty with “continuing status” cannot generally “be demoted, disciplined, or dismissed without cause.” OAG 09-008 Page 3

fective date of the transfer and any subsequent changes made by the university, except that appeals shall be to the board of regents or to the board’s designee. The following provisions shall apply:
….
(b) Employees with tenure shall retain their tenure. Em- ployees without tenure shall earn tenure based on personnel policies in effect at the time of their em- ployment. New employees without tenure shall earn tenure based on the new policies established by the board[.]

(Emphasis added.) KRS 164.5807(5) gives July 1, 1997, as the effec- tive date after which new employees “shall be governed by the rules established by the board.”

Representative Rick Nelson has requested an opinion as to whether a March 13, 2009, revision of KCTCS Board of Regents Policy 2.0 is contrary to KRS 164.5807(3)(b) insofar as it eliminates tenure for newly hired faculty. Specifically, Policy 2.0.1.2 states as follows:

Employment status determines an employee’s right to con- tinued employment with KCTCS. Based on the process by which the faculty or staff member is employed, the em- ployee has a designated employee status.

KCTCS recognizes two (2) employment categories:

A. Term Contract Employment Status

Regular full-time faculty and staff shall be issued a term contract and have term contract employment status. Reg- ular full-time faculty and staff may be offered a series of employment contracts with varying lengths over a long- term association with KCTCS.
OAG 09-008
Page 4

Regular full-time faculty and staff may be offered a series of employment contracts with varying lengths over a long term association with KCTCS. Employment terms are as follows:

Years of Service Contract Length

0-3
1 year or less
4-6
1 or 2 years
7+
1, 2, 3 or 4 years

Exceptions to these specified employment terms must be approved in advance by the KCTCS President.

Faculty and staff who are employed through a term con- tract are subject to the employment terms specified in their contract.

B. “At Will” Employment Status

Temporary faculty and staff (contract and non-contract) shall have “at will” employment status. Regular less than full-time faculty and staff shall have “at will” employment status.

As KCTCS acknowledges in comments received by this office, “The pur- pose and effect of the revised language of BOR Policy 2.0.1.2 is to elim- inate tenure for faculty and staff hired after July 1, 2009.” The ques- tion presented, therefore, is whether the Board of Regents has the statutory authority to eliminate tenure for newly hired faculty. 2

KCTCS maintains that the Board derives its authority to eliminate tenure from the following statutes. KRS 164.350(1)(b) enables the Board to “[a]dopt bylaws, rules, and regulations for the government of its members, officers, agents, and employees, and enforce obedience

2
Our analysis is concerned with the application of KRS 164.5807(3)(b) to regular full- time faculty. OAG 09-008 Page 5

to such rules.” KRS 164.365(1) provides that “[a]nything in any statute of the Commonwealth to the contrary notwithstanding, the power over and control of appointments, qualifications, salaries, and compensation payable out of the State Treasury or otherwise, promotions, and official relations of all employees of ... the Kentucky Community and Technical College System [shall] be under the exclusive jurisdiction of [its] gov- erning board[.]”3 Subsection (2) of that statute requires the Board to “develop personnel rules for the governing of its members, officers, agents, and employees.” Finally, KRS 164.5807(1) requires the Univer- sity of Kentucky Board of Regents to delegate to the KCTCS Board its “management responsibilities,” including “management of … person- nel,” and states that the KCTCS Board “shall have the right to appoint and dismiss personnel and to set the compensation for the employ- ees.” Additionally, KCTCS cites the case of Wells v. Board of Regents of Murray State University, 545 F.2d 15, 17 (6th Cir. 1977), for the proposi- tion that KRS 164.360 and KRS 164.365 confer “exclusive jurisdiction upon the governing board of [an institution] to determine the ‘official relations’ of all [its] employees, including the authority to fix tenure of faculty members.”4

Our analysis of the question presented begins necessarily with KRS 164.5807(3)(b). By its unambiguous terms, KRS 164.5807(3)(b) requires that new faculty at KCTCS “shall earn tenure.” “‘Tenure,’ [as] understood in the teaching profession, embraces the concept of per- manent security in the academic position one holds.” Board of Re- gents of Kentucky State University v. Gale, 898 S.W.2d 517, 521 (Ky. App. 1995). “‘Shall’ is mandatory.” KRS 446.010(30). An unambigu- ous statute must be accepted according to its terms. Mondie v. Com., 158 S.W.3d 203 (Ky. 2005). Therefore, new faculty at KCTCS must be

3
KCTCS contends that KRS 164.365 is “entitled in part ‘Governing boards to have ex- clusive control of employment, tenure, and official relations of employees’” (em- phasis added by KCTCS). In fact, the language quoted is not the title of the act, but only the “catchline” added by the Legislative Research Commission, which is not part of the law. KRS 446.140. The statute itself does not mention tenure. 4 KRS 164.360(1)(b) states in part: “The board of regents for the Kentucky Commu- nity and Technical College System shall appoint a president, and on the recommenda- tion of the president may, in its discretion, appoint all faculty members and employ- ees and fix their compensation and tenure of service….” OAG 09-008 Page 6

able in some way to earn permanent security in their academic posi- tions.

The interpretation of some other sections of KRS Chapter 164 ad- vanced by KCTCS, under which the Board of Regents would have unlim- ited authority over tenure, including the authority to eliminate it, would create a conflict with the clear mandate of KRS 164.5807(3)(b). A con- struction of statutes that places them in conflict with other statutes is not to be favored. Rather, statutes in pari materia “should be con- strued together so that effect may be given to all of the provisions of each, if fairly and reasonably, such construction is possible.” Penden- nis Club v. Alcoholic Beverage Control Bd., 287 Ky. 49, 151 S.W.2d 438, 440 (1941).

The conflict suggested by KCTCS is illusory. Although the Board has been given “exclusive authority” to govern KCTCS, such authority cannot be over and against that of the General Assembly. Rather, the authority of the Board of Regents to govern KCTCS is subject to the specific provisions of KRS Chapter 164. OAG 01-5. It is well estab- lished that specific statutory provisions prevail over general. Land v. Newsome, Ky., 614 S.W.2d 948, 949 (1981). If the specific mandate of KRS 164.5087(3)(b) is construed as an exception to the general gov- erning authority of the Board of Regents, there is no conflict among the provisions.

Wells v. Board of Regents, supra, does not stand to the contrary.
The Wells case was decided twenty years before the enactment of KRS 164.5807 and did not involve an attempt by a governing board to elim- inate tenure. While the KCTCS Board of Regents has the authority to enact procedures and standards for how faculty are to earn tenure in the future, it is not free to eliminate tenure entirely. It is therefore the opinion of this office that KCTCS Board of Regents Policy 2.0.1.2 is con- trary to the requirements of KRS 164.5807(3)(b) 5 to the extent that it purports to eliminate tenure for faculty hired after July 1, 2009.

5
Although KRS 164.5805(1)(d)2 arguably imposes the same requirements, that ques- tion has not been presented to us. In any event, KRS 164.5807(3)(b) is dispositive of the fundamental issue. OAG 09-008 Page 7

Jack Conway
Attorney General

James M. Herrick
Assistant Attorney General