Did Kentucky's superintendent residency rule apply to people appointed before the rule took effect?

Plain-English summary

In 1997, Kentucky's Attorney General concluded that the requirement to establish Kentucky residency applied to every public school superintendent, including people appointed before the residency amendment. The opinion found no grandfather clause in the statute.

The AG rejected the argument that applying the rule to earlier appointees was impermissibly retroactive. It read the rule as imposing a present duty to establish residency, rather than invalidating past appointments or demanding that residence have been established before the law existed.

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

Superintendents appointed before the amendment

The opinion said the residency sentence did not state that a superintendent already in office was exempt. It declined to insert such an exemption. Because the sentence set no deadline, the AG said a reasonable time to establish residency was suggested rather than an impossible obligation to have complied in the past.

School boards applying the residency sentence

KRS 446.080(3) supplied a presumption against retroactive statutes. The AG said the residency amendment did not operate retroactively in the relevant sense because it imposed a current duty on people in office. The opinion distinguished a hypothetical rule that would disqualify superintendents appointed before the amendment for failing to establish residency within a reasonable time after their appointment.

Common questions

Were superintendents already appointed when the rule changed exempt?

No. The AG said there was no grandfather clause and the residency requirement applied to all public school superintendents.

Did the opinion say earlier appointees had already violated the law?

No. It treated the amendment as creating a present duty and said the absence of a time limit suggested a reasonable time for compliance.

Why did the AG reject the retroactivity objection?

The opinion said the rule did not require a duty to have been performed in the past. It imposed a present duty to establish residency and suggested a reasonable time for compliance.

Background and statutory framework

John C. Fogle III asked whether the residency sentence applied only to appointments after the amendment. The AG discussed KRS 160.350(2) and the nonretroactivity presumption in KRS 446.080(3). The source's opening calls the provision “KRS 161.350(2)” and gives a different amendment year from later passages; its later discussion and statute list identify KRS 160.350(2). The original text below retains those inconsistencies as printed.

Citations and references

• KRS 160.350(2): superintendent residency provision as identified in the opinion's later analysis and statute list.
• KRS 446.080(3): presumption against retroactive operation.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_98d88ce9-68e1-4e73-b917-5a149b9688dd/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_98d88ce9-68e1-4e73-b917-5a149b9688dd

Original opinion text

OAG 97-36
November 12, 1997
Subject:

Residency requirement for school superintendents

Requested by:

John C. Fogle III

Written by:

Ross T. Carter

Syllabus:

All public school superintendents must establish residency in Kentucky

Statutes construed:
OAGs cited:

KRS 160.350(2), KRS 446.080(3)

None

Opinion of the Attorney General
In 1992, the General Assembly added this sentence to KRS
161.350(2): “Following appointment, the superintendent shall establish residency in Kentucky.” We have been asked whether this provision applies to all superintendents, or only to superintendents appointed after the effective date of the legislation. The words of the statute provide no clue to the legislature’s intent. Another sentence in the same subsection exhibits the kind of precision that renders opinions such as this one unnecessary: “A superintendent candidate who is to begin his duties after June 30, 1994, shall successfully complete the training program and assessment center

OAG 97-36
Page 2

process within one (1) year of assuming his duties as superintendent.”
Here we have a clear statement of the class on which the duty is imposed and of the time during which the duty is to be performed. In the 1996 amendment—“Following appointment, the superintendent shall establish residency in Kentucky.”—we have neither. We are asked to find that application of the 1996 amendment to superintendents appointed before the effective date of the act would constitute a retroactive construction of the statute. Because KRS 446.080(3) states that statutes shall be presumed not to operate retroactively, it is suggested to us that the 1996 law does not apply to superintendents appointed before the law was enacted. We do not agree that the question before us involves a retroactive application of the statute. The words retrospective and retroactive, themselves basically imprecise, do not describe every law that affects actions taken in the past. Rather, they describe acts which operate on transactions which have occurred or rights and obligations which have existed before passage of the act. Although court opinions often designate statutes as being either prospective or retrospective, the statutes in fact are often not susceptible to such clear, definite, and all-embracing characterizations as that. Many statutes are in various respects both prospective and retrospective. Characterization thus may do nothing more than reflect a judgment concerning validity or interpretation, arrived at on other grounds. C. Dallas Sands, 2 Sutherland Statutory Construction § 41.01 (Callaghan, 4th ed 1973). The 1996 amendment to KRS 160.350(2) does not impose a duty that must have been performed in the past; it imparts a present duty. That is to say, the statute does not state that all superintendents who failed to establish residency in Kentucky within a reasonable time following appointment are ineligible to hold office; that would be a

OAG 97-36
Page 3

truly retroactive law in the sense that it would be too late for the superintendents to comply with the duty that the law imposes. In contrast, the statute imposes a present duty on superintendents to establish residency in Kentucky. No time limit is given for them to perform this duty, suggesting that a reasonable time is allowed. Construing the statute to exempt superintendents appointed before 1996 would require reading words into the statute that are not there. The statute contains no grandfather clause, and we will not create one. It is our opinion that all public school superintendents must establish residency in Kentucky. Albert B. Chandler III Attorney General

Ross T. Carter
Assistant Attorney General