Could a Kentucky school board appoint its acting superintendent to the permanent superintendent job?

Plain-English summary

In 1997, Kentucky's Attorney General said a school board could not appoint its acting superintendent to the permanent superintendent post. KRS 160.350(1) described two situations in which a board could appoint an acting superintendent, and the AG applied the statutory bar on applying for or receiving the permanent job to both.

The question arose because the bar appeared between the statute's two acting-appointment provisions. The AG examined their legislative history and said the legislature had enacted the bar and the second appointment provision together, with no language distinguishing the two kinds of acting superintendent.

Currency note

This opinion was issued in 1997. 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

School boards facing a vacancy

The opinion described one acting appointment during the period between a board election and new members taking office. The other allowed an acting appointment while a superintendent screening committee worked and before the board appointed a new superintendent. The AG concluded that a person appointed through either route could not apply for or be appointed to the permanent post.

How the AG read the statute

Both possible readings of the sentence order were plausible to the AG. It looked to the 1992 amendment, which added the disqualification sentence and the screening-period appointment language in one enactment. It found no textual or purpose-based reason to disqualify only one group of acting superintendents.

Common questions

Could an acting superintendent apply for the permanent position?

No. Under the AG's reading, the statute barred the acting superintendent from applying for or being appointed to that position.

Did the bar apply only to a vacancy around a school board election?

No. The AG applied it both to the election-period appointment and to an acting appointment while the screening committee was working.

Did the timing of the vacancy change the answer?

The AG said no. It found no reason to distinguish acting superintendents solely by the time of year in which the vacancy arose.

Background and statutory framework

McCracken County school board counsel Gorman Bradley Jr. asked whether an acting appointee could fill the permanent vacancy. The AG interpreted KRS 160.350(1) and its reference to screening under KRS 160.352. It cited Howell v Collier, Williams v Commonwealth, and Beckham v Board of Education of Jefferson County for principles of statutory interpretation. One passage of the original text labels the 1992 amendment “KRS 160.355(1),” while the opinion otherwise identifies KRS 160.350(1); the transcription preserves that discrepancy.

Citations and references

• KRS 160.350(1): acting appointments and the bar on later appointment.
• KRS 160.352: superintendent screening committees discussed by the opinion.
• Howell v Collier, Ky, 282 SW 2d 327 (1955), Williams v Commonwealth, Ky App, 829 SW 2d 942, 945 (1992), and Beckham v Board of Education of Jefferson County, Ky, 873 SW 2d 575, 577 (1994): authorities cited for interpreting the statute.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_27c9a7a7-1670-468c-a31a-fe1ffc765931/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_27c9a7a7-1670-468c-a31a-fe1ffc765931

Original opinion text

OAG 97-35
September 23, 1997
Subject:

Whether acting superintendent of public schools may
be appointed as superintendent

Requested by: Gorman Bradley Jr., counsel for McCracken County
Board of Education
Written by:

Ross T. Carter

Syllabus:

Board of education of public school may not appoint
an acting superintendent to fill the position of superintendent

Statutes construed:
OAGs cited:

KRS 160.350(1)

None

Opinion of the Attorney General
We have been asked whether a person appointed as acting superintendent of a public school district may be appointed to fill the office of superintendent for that district. This is an issue of first impression in Kentucky, and we provide this opinion pursuant to KRS 15.025(1) and (3). The answer is no.

OAG 97-35
Page 2

The question arises because of ambiguity in KRS 160.350(1).
That statute describes two situations in which a school board may appoint an acting superintendent. The situation applies to vacancies that occur in the period between a school board election and the qualification of the newly elected members. “When a vacancy occurs during this period,” the statute says, “the position shall not be filled until the new members take office, but the board may appoint an acting superintendent to serve a term not to exceed six (6) months. This appointment may be renewed once for a period not to exceed three (3) months.” The same subsection provides for an acting superintendent to be appointed while the applicants are being screened: “If a vacancy occurs, a local board may also appoint an acting superintendent during the period the screening committee pursuant to KRS 160.352 conducts its business and prior to the actual appointment of the new superintendent.” Sandwiched between these two excerpts is the following provision: “The person appointed to serve as acting superintendent shall not be an applicant for, nor be appointed to, the position of superintendent.” The question before us is whether this limitation applies to both types of appointments of acting superintendents, or only to the first. Those who maintain that the limitation applies only to the first type of appointment argue that the sequence of sentences in the statute is controlling. Because the limitation appears before the language authorizing the second type of appointment rather than after it, the argument goes, the legislature is presumed to have intended that the limitation affect only that which precedes it. Those who maintain that the limitation applies to both types of appointment point out that the statute does not explicitly direct the limitation to one type of appointment, implying that it applies to both. The two arguments are equally logical. We believe that the solution lies in an examination of the legislative history.

OAG 97-35
Page 3

KRS 160.350(1) did not provide for acting superintendents until
1984. The 1984 amendment stated that a school board could not appoint a superintendent during the period between a school board election and the assumption of office by new board members, but rather must appoint an acting superintendent for a term of six months. In 1988 the legislature enacted some semantic amendments to the KRS 160.350, including the inappropriate substitution of therefore for thereafter. In 1990 the legislature enacted KRS 160.352, which creates superintendent screening committees, and added the phrase “after considering the recommendations of a screening committee” to KRS 160.350(1). In 1992, the legislature added this language to KRS 160.350(1): The person appointed to serve as acting superintendent shall not be an applicant for nor be appointed to the position of superintendent. If a vacancy occurs, a local board may also appoint an acting superintendent during the period the screening committee pursuant to KRS 160.352 conducts its business and prior to the actual appointment of the new superintendent. The legislative history of an enactment may provide relevant insight into the proper construction of a statute. Howell v Collier, Ky, 282 SW 2d 327 (1955). “A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent.” Norman J. Singer, 2A Sutherland Statutory Construction § 46.05 at 103 (Callaghan, 5th ed 1992). The 1992 amendment to KRS 160.355(1) was passed as a whole and is, like the enactment of an entire statute, animated by one general purpose and intent. It is difficult for us to believe that the legislature in one bill enacted the two sentences quoted above and yet intended that neither sentence have any relevance to the other. Parts of a statute must be construed as being in harmony rather than in opposition. Williams v Commonwealth, Ky App, 829 SW 2d 942, 945 (1992). A meaning cannot be inferred if it is not reasonably ascer-

OAG 97-35
Page 4

tainable from the language used. Beckham v Board of Education of
Jefferson County, Ky, 873 SW 2d 575, 577 (1994). Nothing in the language used in KRS 160.350(1) implies that the legislature intended to distinguish two types of appointment of acting superintendents. “If a statute is to make sense, it must be read in light of some assumed purpose. A statute merely declaring a rule, with no purpose or objective, is nonsense.” Karl N. Llewellyn, Remarks on the theory of appellate decision and the rules or canons about how statutes are to be construed, 3 Vanderbilt Law Review 395 (1950). We can discern no purpose or objective that would be served by disqualifying one set of acting superintendents from serving as superintendent while allowing another set to serve, with the only distinction between the two groups being the time of year in which the superintendent’s office became vacant. Therefore, we conclude that any acting superintendent appointed under KRS 160.350(1) may not be appointed superintendent. A. B. Chandler III

Ross T. Carter
Manager of the Opinions Branch