RENDERED: OCTOBER 29, 2021; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0625-MR

ROGER SMITH APPELLANT 

v. 

APPEAL FROM LAUREL CIRCUIT COURT

HONORABLE GREGORY A. LAY, JUDGE

ACTION NO. 19-CI-00605 

DOUG BENNETT, IN HIS OFFICIAL CAPACITY AS 

SUPERINTENDENT OF LAUREL COUNTY 

SCHOOLS; BOARD OF EDUCATION OF LAUREL 

COUNTY, KENTUCKY; JAMES L. DICKINSON, IN 

HIS OFFICIAL CAPACITY AS HEARING OFFICER;1

AND WAYNE D. LEWIS, JR., IN HIS OFFICIAL 

CAPACITY AS COMMISSIONER OF EDUCATION, 

KENTUCKY DEPARTMENT OF EDUCATION APPELLEES 

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.

 

1

James L. Dickinson filed a brief in this Court but argued he should be dismissed as a party to 

this appeal. He was dismissed in the underlying case and Appellant Smith does not seek reversal 

of the circuit court order doing so, but argues Dickinson is an indispensable party to this appeal. 

Because Smith is prevailing as to all his arguments, we conclude Dickinson’s status as a party to 

this appeal is a moot question and we decline to rule on it. 
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ACREE, JUDGE: Roger Smith appeals the Laurel Circuit Court’s April 15, 2020 

Order and Judgment (Record (R.) at 142-48) in favor of the Board of Education of 

Laurel County, Kentucky (Board), ruling that the continuing service contract 

between the parties (the Laurel Contract) was unenforceable as a matter of law 

because Smith executed it “after breaking his tenure status by working only 139 

days in Mercer County.” (R. at 144 (citing Kentucky Revised Statutes (KRS) 

161.720(2))). We conclude the circuit court based its ruling on the wrong statute. 

Applying the correct statute, KRS 161.740(1)(c), yields the opposite result–

Smith’s tenure never terminated, and the contract remains enforceable. Therefore, 

we reverse the Order and Judgment and remand the case for further proceedings 

consistent with this Opinion.

The facts are not in dispute. “Smith established tenure in the Lincoln 

County Schools[;] this is uncontested.” (R. at 143.) “After leaving Lincoln 

County Schools, he was employed by the Fayette County Public Schools for one 

year, at the Mercer County Schools for two years, at the Bourbon County Schools 

for one year (under a limited contract) and[,] before being employed by the Laurel 

County Schools[,] had been employed . . . in the Clark County School District.” 

See Board’s Appeal from Administrative Agency Decision and Petition for 

Declaration of Rights, Exhibit 3 (R. at 16-17.) 
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On July 1, 2017, the parties executed a “Limited Probationary 

Contract of Employment (Portable Tenure Contract)” for Smith to teach in the 

Laurel County Public Schools for the 2017-2018 school year. (R. at 138-39.) 

After satisfactorily performing the probationary contract, on July 1, 2018, the 

parties agreed to a “Continuing Contract of Employment” for the 2018-2019 

school year which “shall be continued from year to year . . . .” (R. at 140-41.) 

On May 1, 2019, Appellee Doug Bennett, Laurel County School

Superintendent, wrote to Smith that his contract would not be renewed for the 

2019-2020 school year. (R. at 12.) Smith sought administrative review of the 

dispute in a tribunal of the Kentucky Board of Education which concluded “Smith 

had a ‘continuing service contract’ (tenure)” with the Board. (R. at 8.) 

As the party aggrieved by that decision, the Board sought relief in 

circuit court, claiming “Defendant [Smith] lost his tenured status” before executing 

the Laurel Contract, and challenging “the validity of the underlying contract itself.” 

(R. at 7.) The Board based its petition and appeal to the circuit court on the 

following argument:

“Tenure” . . . is a legislative act or right, not a contractual 

right, and the parties could not enter into a contract that is 

contrary to Kentucky law or rights granted by statute or 

contrary to the legislative grant of Continuing Service 

Contracts (“Tenure”) because Smith was not employed for 

one (1) school year in the Mercer County Schools and did 

not attain the legal requirements for continuing service 
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contract status or tenure by working in any school district 

for four (4) continuous years thereafter.

(R. at 7.) Persuaded by this argument, the circuit court granted the relief the Board 

sought. However, both the Board and the circuit court confuse the requirements 

for attaining tenure with what must be found to have occurred before a teacher’s 

tenure, or continuing service status, is terminated. 

We start our analysis by quoting that portion of the circuit court’s 

Order and Judgment containing its reasoning for finding the Laurel Contract 

unenforceable. The circuit court said:

KRS 161.720(2) states, “The term ‘year’ as applied to 

terms of service means actual service of not less than 

seven (7) school months within a school year. . . .”

. . . .

Smith established tenure in Lincoln County 

Schools[;] this is uncontested. Then he went to Fayette 

County for one year and his employment was nonrenewed. Smith was not employed in any school district 

until October 8, 2013 by the Mercer County Schools; the 

[c]ourt understands that teachers usually begin their 

contract work days in August of each year. [B]ecause of 

the late hiring Smith was able to work only 139 days.

It is undisputed that in Kentucky, teachers are 

required to work 140 days of a minimum of six (6) hours 

per day for the employment to count as a “year” of 

teaching experience. The [c]ourt finds that it is undisputed 

that Smith worked 139 days during the 2013-2014 school 

year in Mercer County; he then worked a full school year 

in Mercer County. After Mercer County, Smith taught in 

Bourbon County one year, Clark County one year, and 
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then in Laurel County for two years. He did not 

reestablished [sic] tenure in the same school district after 

breaking his tenure status by working only 139 days in 

Mercer County.

(R. at 143-45.) As we explain, these paragraphs reveal the circuit court’s legal 

error, as do its citations to inapplicable authority addressing the attainment of 

tenure, not its portability from one district to the next. (See R. at 145-46 (citing 

KRS 161.740(1)(b);

2 quoting Board of Educ. of Bellevue v. Rothfuss, 639 S.W.2d 

545, 547 (Ky. 1982) (teacher never attained tenure; part-time contract “could not 

be used in computing tenure, he was not eligible for a continuing contract.”))). 

Just as the Board points out,3a school year as defined by KRS 

161.720(2) is significant for purposes of determining the four years necessary to 

attain tenure under KRS 161.740(1)(b). See Rothfuss, 639 S.W.2d at 546 (for each 

of four years necessary to achieve tenure, a teacher must “accrue a year’s eligibility 

toward a continuing service contract (KRS 161.740(1)(b); KRS 161.720(2)”). 

However, as our analysis reveals, the portability of tenure status is not measured 

by how long the teacher works in a particular school year, but by how long the 

tenured teacher goes without working before employment in another district.

 

2 Mistakenly cited in the Order and Judgment as KRS 161.740(1)(h). 

3 The Board cites an Opinion of the Kentucky Attorney General (1976-278) stating “a year for 

tenure consideration is . . . one hundred and forty school days . . . .” (Board’s Appellee brief, pp. 

7-8 (emphasis added)). 
-6-

Our analytical focus is on the portability of Smith’s tenure status from 

one school district to the next. Thus, we must interpret and apply legislation 

addressing the issue. “We review de novo issues of statutory interpretation and 

application, and in doing so our duty is to effect the intent of the legislature.” City 

of Villa Hills v. Kentucky Retirement Systems, 628 S.W.3d 94, 103 (Ky. 2021). 

Understanding teacher-tenure portability requires examining how our statutes have 

addressed the concept of tenure generally as it evolved over time.

Teacher tenure predates the Kentucky Revised Statutes and has 

always been known by the less common term “continuing service status.” 1942 

Ky. Acts ch. 113, § 1. Now, we use the terms interchangeably. Eighty years ago, 

a teacher attained continuing service status if he was “qualified as to certification” 

and “taught for at least four years . . . .” Id. at § 3.

Tenure was not automatically portable then. The tenured teacher 

would have to teach in a subsequent district for two years, after which the tenured 

teacher could claim the right to a continuing contract, rather than a limited 

contract. Id. However, the board of education in the subsequent district could 

approve continuing service status “at the time of employment or at any time within 

the two-year period.” Id. Conversely, even after the teacher who attained 

continuing service status in a prior district served two years in a subsequent

district, continuing service status would be lost if four-fifths of the subsequent 
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district’s board rejected the superintendent’s recommendation for a continuing 

contract. Id.

In 1944, those rules were re-codified as KRS 161.740. 1944 Ky. Acts 

ch. 98, page 181. In that process, the legislature granted to the original board 

(where continuing service status is initially sought) the same power to reject tenure 

status by a four-fifths vote as enjoyed only by the subsequent board under the 

statute’s prior version. Compare 1944 Ky. Acts ch. 98, page 181 (as codified in 

KRS 161.740(1)(b), (c), and (2) (1944)) with 1942 Ky. Acts ch. 113, § 1. 

The 1954 amendments to KRS 161.740 retained the four-fifths vote 

veto power for the board of the original district but took it away from the board of 

the subsequent district. Compare 1954 Ky. Acts ch. 60, page 147 (see within the 

Act KRS 161.740(1)(c)) with 1944 Ky. Acts ch. 98, page 181 (see within the Act

KRS 161.740(1)(b), (c), and (2)). The change meant greater portability and 

protection of a teacher’s tenured status. However, ten years later, the pendulum 

would swing back again, making tenure portability more difficult.

The legislative session in 1964 strived for clarification in teacher 

tenure law. As for tenure itself, the legislature decided it was no longer enough if a 

teacher taught in “a” school district for four years sometime in the unspecified 

past. Beginning in 1964, those four years had to be in the same district and either 

be four consecutive years or four non-consecutive years within the previous six. 
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1964 Ky. Acts ch. 41 § 3, pages 159-60 (amending KRS 161.740(1)(b)). In 

substance, that remains the law today. See KRS 161.740(1)(b).

As for portability, it became more difficult to retain tenure status 

previously attained in a prior school district. Beginning in 1964: “When a teacher 

has attained continuing contract status in one district and becomes employed in 

another district, said teacher shall resume probationary status and shall become 

eligible for continuing contract status only upon fulfilling the requirements of KRS 

161.740(1)(a) and (b).” 1964 Ky. Acts ch. 41 § 3, page 160 (amending KRS 

161.740(1)(c)). That is, the teacher had to start all over and satisfy, in the 

subsequent district, the same requirements for attaining tenure in the first district–

at least four consecutive, or four years employment out of six in the subsequent 

district. But, after ten more years, the pendulum again would swing back in the 

other direction.

In 1974, the default probationary status and start-all-over-again

approach of the statute’s 1964 version was rejected and replaced by one that 

seemed to be more favorable to portability. Beginning in ‘74, a teacher with 

continuing service status who became employed “in another district . . . shall 

retain that status provided, however, that a district may require a one-year 

probationary period of service in that district before granting that [continuing 

service] status.” 1974 Ky. Acts ch. 185 § 1, page 381 (amending KRS 
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161.740(1)(c) (emphasis added)). The default position was that tenure was 

automatic in the subsequent school district unless the board elected–note use of the 

permissive “may”–to identify the first year as probationary, after which tenure 

would be recognized and a continuing service contract entered for the second year. 

This portability protection proved illusory. In 1977, when a teacher

claimed tenure in Owsley County, the school board found a way to deny it. In 

Carpenter v. Board of Education of Owsley County, the teacher “undoubtedly 

attained continuing service status . . . in the Fleming County School District.” 582 

S.W.2d 645, 646 (Ky. 1979). He taught there “for six successive school years until 

his resignation in 1972.” Id. at 645 (emphasis added). He then taught for a year in 

Bracken County before his employment for three years by the Board of Education 

of Owsley County. Id. at 645-46. But his claim to a continuing contract the next 

year turned out not to be protected by newly amended KRS 161.740(1)(c).

The Supreme Court held that his continuing service status ended by 

operation of KRS 161.720–a definitions statute and the same statute relied upon by 

the Laurel Circuit Court in this case. As it does today, that statute defined 

“continuing service contract,” in pertinent part, as: “a contract for the employment 

of a teacher which shall remain in full force and effect until: (a) The teacher 

resigns . . . .” KRS 161.720(4)(a). As noted, the teacher in Carpenter resigned 

before taking his next teaching position in Bracken County and that was that, said 
-10-

the Supreme Court. Applying KRS 161.720(4)(a), the Court held his resignation 

terminated his tenure. He taught only one year in Bracken County and never reattained tenure there or in Owsley County. Carpenter, 582 S.W.2d at 646 (teacher

failed “to comply with KRS 161.740(1)(b) anew.”).

Obviously, the Carpenter Court recognized the draconian nature of its

ruling because it immediately said this:

We remind those who may find this result unsatisfactory 

that “(o)ur function in interpreting statutes is limited to 

analyzing and applying what the legislature has said, and 

does not extend to psychoanalyzing the legislature and 

applying what it may have meant to say. Cries for 

modification should be addressed to the legislature.” 

Apache Coal Co. v. Fuller, Ky., 541 S.W.2d 933, 935 

(1976).

Id. at 646. Apparently, someone heeded the advice to cry for modification.

In 1982, at the second legislative session after Carpenter was 

rendered, the Legislature supplemented KRS 161.740(1)(c) with new language that 

would prohibit Carpenter-based use of KRS 161.720 to deprive a teacher of 

continuing contract status. 1982 Ky. Acts ch. 401 § 1, page 1358. This 

amendment made tenure portability more secure than ever by adding the following 

relevant language:

For purposes of this subsection, the continuing contract of 

a teacher shall not be deemed to have terminated when the 

teacher leaves employment, all provisions of KRS 161.720 

to 161.810 to the contrary notwithstanding, and the 

continuing service contract shall be transferred to the next 
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school district, under conditions herein set forth, for a 

period of up to seven (7) months from the time 

employment in the first school district has terminated.

Id. (supplementing KRS 161.740(1)(c)) (emphasis added). 

This supplemental language rejected Carpenter’s definitions-based 

resolution by excluding KRS 161.720 and all statutes other than KRS 161.740 

from the portability calculus while leaving unaffected its holding that “limit[ed] the 

availability of KRS 161.740(1)(c) to those teachers who currently hold tenure at 

the time of their employment in another district.” Carpenter, 582 S.W.2d at 646. 

This prohibition remains in the current version of the statute.

Since 1982, there have been only minor changes. Today, the teacher 

tenure portability language relevant to the instant case is as follows:

When a teacher has attained continuing contract status in 

one (1) district and becomes employed in another district, 

the teacher shall retain that status, . . . . However, a district 

may require a one (1) year probationary period of service 

in that district before granting that status. For purposes of 

this subsection, the continuing contract of a teacher shall 

not be terminated when the teacher leaves employment, all 

provisions of KRS 161.720 to 161.810 to the contrary 

notwithstanding, and the continuing service contract shall 

be transferred to the next school district, under conditions 

set forth in this section, for a period of up to seven (7) 

months from the time employment in the first school 

district has terminated.

KRS 161.740(1)(c) (emphasis added). The Legislature clearly intended that no 

other statute from KRS 161.720 to KRS 161.810 was to bear on the determination 
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of portability of a teacher’s continuing service status. By deciding the issue based 

on KRS 161.720(2), the circuit court in this case contravened that legislative intent.

KRS 161.740(1)(c) says, “the continuing contract of a teacher shall 

not be terminated when the teacher leaves employment” and “the continuing 

service contract shall be transferred to the next school district,” but that does not 

mean tenure is portable forever. The limiting language is found a few lines later. 

The continuing contract, and the consequent period of portability, lasts “for a 

period of up to seven (7) months from the time employment in the first school

district has terminated.” Id. This time-frame would require a tenured teacher who 

ended employment at the end of a school year to retain tenure by being hired

before the mid-year point, around winter break, of the succeeding school year.

Now that we fully understand teacher-tenure portability, applying it to 

the facts of this case is simple. We are somewhat hampered, however, because the 

only teacher contracts in this record are the probationary and continuing service 

contracts between the parties. However, that does not prevent a thorough 

application of the facts that have been repeatedly agreed and relied upon by the 

parties, the lower court, and the administrative tribunal.

When Smith left the employ of Lincoln County Public Schools, no 

more than the summer of 2012 could have elapsed before he was employed as a 

teacher in Fayette County Public Schools–roughly three (3) months. 
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After Smith left Fayette County Public Schools at the end of the 2012-

2013 academic year, he did not begin employment with Mercer County Public 

Schools until October 8, 2013. Although we cannot determine precisely the lapse 

of time between the end of the 2012-2013 school year and that date, we can 

determine with confidence that it was far less than seven (7) months. For seven (7) 

months to have elapsed before Smith was employed by Mercer County Public 

Schools, the Fayette County Public Schools’ academic year would have to have 

ended around March 8, 2013. It cannot be argued rationally that it did.

There is no evidence to contradict the proof that Smith was employed 

during the full academic years from 2014 to 2017 at each of the various schools 

before the Board hired him. Therefore, during that period, there was never more 

than a 3-month lapse of Smith’s employment as a teacher who had attained 

continuing contract status.

The Board obviously knew KRS 161.740(1)(c) permitted it to “require 

a one (1) year probationary period of service in that district before granting that 

status” of continuing service. The record indicates it was the only board to elect 

that option, which it did when it executed the “Limited Probationary Contract of 

Employment (Portable Tenure Contract)” with Smith on July 1, 2017. There is no 

evidence the Board was unsatisfied with Smith’s performance or that he had 

engaged in conduct to justify his termination. By operation of KRS 161.740(1)(c), 
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Smith was entitled to continuing contract status and the Board agreed to that

continuing contract beginning July 1, 2018. 

Having resolved the portability and retention of Smith’s continuing 

service status in accordance with KRS 161.740(1)(c), the Court next concludes the 

Laurel Contract is enforceable and Smith is entitled to rely on it. Now, we can 

apply the definitions section to conclude the Laurel Contract “shall remain in full 

force and effect until: (a) The teacher resigns or retires; [or] (b) The contract is 

terminated or suspended as provided in KRS 161.790 and 161.800 . . . .” KRS 

161.720(4)(a)-(b) (subsection (4)(c) is inapplicable under these facts).

When Superintendent Bennett, as the Board’s agent, wrote to Smith 

on May 1, 2019, denying him the rights the Laurel Contract grants him to teach in 

the Laurel County schools, the Board breached that contract.

CONCLUSION

For the foregoing reasons, the Laurel Circuit Court’s April 15, 2020 

Order and Judgment is reversed and this matter is remanded for further 

proceedings consistent with this Opinion. 

ALL CONCUR.
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BRIEFS AND ORAL ARGUMENT

FOR APPELLANT:

Peter J. Jannace

Louisville, Kentucky

BRIEF FOR APPELLEES BOARD 

OF EDUCATION OF LAUREL 

COUNTY AND DOUG BENNETT:

Larry G. Bryson 

London, Kentucky

BRIEF FOR APPELLEE JAMES L. 

DICKINSON:

Matthew F. Kuhn

Heather L. Becker

Frankfort, Kentucky

ORAL ARGUMENT FOR 

APPELLEES:

Larry Bryson

London, Kentucky