Could a Kentucky superintendent use a committee and a teachers' contract for school restaffing decisions?

Plain-English summary

Counsel for the Jefferson County Teachers Association asked how HB 176 affected teacher retention decisions under a school restaffing option. The Kentucky Attorney General said in 2012 that the bill did not prescribe the method for those decisions and did not bar a superintendent from using a collaborative committee. The AG also said the union and school district could apply their collective bargaining agreement or make an implementation agreement so long as they did not violate HB 176.

Jefferson County Public Schools received federal School Improvement Grants, which added another constraint. The opinion quoted federal guidance saying a grant recipient had to satisfy the grant's school-intervention requirements while respecting governing law and agreements. If an agreement conflicted with federal grant requirements, the AG said the district and union had to negotiate a waiver or modification under their agreement's terms. The signed archive PDF refers to an attached Exhibit A containing guidance excerpts, but the exhibit itself is absent from the PDF; this page relies only on the excerpts printed in the opinion letter.

Currency note

This opinion was issued in 2012. 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.

Historical summary

Superintendents making retention decisions

The AG found no retention-decision procedure in HB 176 beyond its stated rules on personnel actions. The bill did not prohibit a superintendent from developing a collaborative model in which a committee recommended retention decisions. Because Jefferson County Public Schools received School Improvement Grants, the opinion also directed attention to federal guidance on who could make decisions under a turnaround model.

Teachers and bargaining representatives

The opinion said the parties could apply their existing agreement or negotiate an implementation arrangement if it did not conflict with HB 176. It quoted federal guidance protecting agreement rights while requiring recipients to implement the grant's intervention model. The AG said the district and union had to negotiate conflicting terms if federal grant rules required a change.

Common questions

Did HB 176 set a required process for retaining teachers during restaffing?

The AG said no. The bill did not specify a mechanism for those decisions, apart from its express personnel-action provisions.

Could the superintendent use a committee?

The opinion said HB 176 did not prohibit a collaborative committee making recommendations. It also warned that a grant recipient had to comply with the federal guidance applicable to its grant model.

Could a collective bargaining agreement still govern restaffing?

The AG said the parties could apply it where its terms did not violate HB 176. If the agreement conflicted with applicable federal School Improvement Grant requirements, the opinion said the parties had to negotiate a waiver or modification under the agreement's terms.

Is the cited federal guidance attachment available in the linked archive PDF?

The four-page archive PDF reproduces quoted guidance within the signed letter, but ends at the signatures without a separate Exhibit A. This page does not infer the attachment's remaining contents.

Background and statutory framework

The request posed three questions about HB 176: whether it specified a retention process, whether a superintendent could use a committee, and whether collective bargaining arrangements could apply. The AG answered each under the bill's text and then considered Jefferson County Public Schools' receipt of School Improvement Grants. The opinion quoted portions of grant guidance on turnaround models and collective bargaining but did not reproduce the Exhibit A it said was attached.

Citations and references

• HB 176: bill whose school-restaffing provisions the AG interpreted.
• KRS 160.380(1)(c) and KRS 160.345(2)(h)1: personnel-action provisions expressly mentioned in the opinion.
• Federal School Improvement Grant guidance, Sections B-1, B-4, and F-7(a): excerpts quoted in the signed letter; the referenced Exhibit A is absent from the archive PDF.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_de90e31e-0c40-4438-a79e-1327f9bc3e70/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_de90e31e-0c40-4438-a79e-1327f9bc3e70

Original opinion text

OAG 12-003
March 6, 2012
Subject:

The Implication of HB 176

Requested by:

Don Meade
Counsel for Jefferson County Teachers Association

Written by:

Aaron S. Ament

Syllabus:

HB 176 does not specify a mechanism by which retention decisions must be made. HB 176 does not prohibit the superintendent from developing a collaborative model that involves a committee making a recommendation on retention decisions. Parties to a teacher collective bargaining agreement may collaborate and otherwise agree to apply provisions of the collective bargaining agreement as long as those agreements do not violate the express provisions of HB 176.

Statutes construed:
HB 176; KRS 160.380(1)(c); KRS 160.345(2)
(h)1
OAGs cited:

None

Opinion of the Attorney General

In your representation of the Jefferson County Teachers Association (JCTA), you asked our office to address three questions:

OAG 12-003
Page 2

1.

Does HB 176 specify a mechanism by which retention decisions must be made by a school district under the restaffing option?

2.

May a superintendent delegate the retention decisions to a committee that includes his appointments and make the committee his designee without violating HB 176?

3.

May the parties to a teacher collective bargaining
agreement collaborate and otherwise agree to apply
provisions of the collective bargaining agreement, or
fashion a memorandum of agreement regarding implementation of the provisions of HB 176, so long as those agreements do not violate the express provisions of HB 176?

In response to the first question, it is the view of this office that
HB 176 does not specify a mechanism by which retention decisions
must be made, other than noting that “personnel actions shall comply
with KRS Chapter 161 and notwithstanding KRS 160.380(1)(c) relating
to filling vacant positions and KRS 160.345(2)(h)1 relating to transfers.” However, Jefferson County Public Schools (“JCPS”) currently receives School Improvement Grants (“SIGs”) from the U.S. Department of Education and, consequently, should be aware that any mechanism for making retention decisions under the restaffing option must comply with federal guidelines applicable to recipients of such grants. In response to your second question, HB 176 does not prohibit the superintendent from developing a collaborative model that involves a committee making a recommendation on retention decisions. The silence of HB 176 on the mechanisms for making retention decisions should not be interpreted as prohibiting the superintendent to delegate the decision making on retention decisions. However, as a SIG recipient, JCPS should be aware of federal guidelines that address the use of a collaborative model, e.g., a committee, vested with decision-making authority regarding retention decisions. We refer you to Sections B-1 and B-4 of Guidance on Fiscal Year 2010 School Improvement Grants Under Section 1003(g) of the Elementary and Secondary

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Education Act of 1965 (the “Guidelines”), relevant portions attached
hereto as Exhibit A:
Section B-1: “A turnaround model is one in which an LEA [Local
Education Association] must do the following: (1) replace the
principal and grant the principal sufficient operational flexibility
(including in staffing, calendars/time, and budgeting) to implement fully a comprehensive approach in order to substantially improve student achievement outcomes and increase high school graduation rates[…].” Section B-4: “…As part of a rigorous recruitment, screening and selection process, assessments of turnaround teachers’ competencies can be used by the principal or district leader to distinguish between very high performers and more typical or lowerperforming teachers in a turnaround setting. (…)” In response to your third question, parties to a teacher collective bargaining agreement may collaborate and otherwise agree to apply provisions of the collective bargaining agreement as long as those agreements do not violate the express provisions of HB 176. We refer you to Section F-7(a) of the Guidelines, which directly addresses the issue of adherence to collective bargaining agreements in school intervention models: “Nothing in the SIG final requirements gives an LEA the authority to take action that it is not otherwise permitted to take. Accordingly an LEA must implement the school intervention models in a manner that complies with all governing laws, regulations, and agreements, which includes providing the rights, remedies, and procedures afforded to LEA employees under existing collective bargaining agreements. For example, in many States, an LEA has an obligation to bargain with its union over issues that are affected by elements of the school intervention models before those elements may be implemented. At the same time, however, an LEA may not fail to implement specific components of a school intervention model because they conflict with one or more

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of those rights, remedies, or procedures. For example, under the
transformational model, an LEA must implement a teacher evaluation system that includes student growth as a significant factor; an LEA would not be exempt from this requirement because its collective bargaining agreement prohibits teacher evaluation based on student achievement. Therefore, as discussed in F-7, an LEA that has such a collective bargaining agreement and wishes to apply for SIG funds to implement a transformation model must negotiate with its collective bargaining unit to modify the collective bargaining agreement in a manner that enables the LEA to comply with the SIG final requirements without violating the agreement. If an LEA cannot resolve the conflict in a way that permits it to implement one of the school intervention models fully and effectively, it would not be able to apply for SIG funds. (New for FY 2010 Guidance)” (Emphasis added). We believe that this provision protects the right of workers under the collective bargaining agreement. However, if there is a conflict between the collective bargaining agreement and federal regulations applicable to the recipients of SIGs, the JCTA and the JCPS must negotiate, pursuant to the terms of the collective bargaining agreement, and agree to waive or otherwise modify the conflicting provisions with respect to the school in question. JACK CONWAY ATTORNEY GENERAL

Aaron S. Ament
Assistant Attorney General