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. Dick in son 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 i s a moot question and we decline to rule on it

.- 2

-

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 i t “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 t he circuit court based its ruling on the wrong statute

. Applying the correct statute , KRS 161

. 740(1)(c), yields the opposit e result

– Smit h’s tenure never terminated , and the contract remains enforceable. Therefore,

we re verse the Order and Judgment and remand the case for further proceedings consistent with this O pinion.

The facts are not in dispute. “Smith established tenure in the Lincoln County Schools[;] this is uncontested.” (R. at 143

. ) “After leaving Lincoln
Co unty 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

. )- 3

- On July 1, 2017, the parties executed a “Limited Probationary Contract of Employment (Portable Tenure Contract)” for Smith to teach in the Laurel County P ublic S chools for the 2017

- 2018 school year. (R. at 138

- 39

. ) After satisfactorily perform ing the probat ionary 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

- 202 0 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 b y 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- 4

- contract status o r tenure by working in any school district for four (4) continuous years thereafter. (R. at 7

. ) Persuaded by this argument, t he circuit court granted the relief the Board sought. However, both the Board and the circuit court confuse the requirements for a ttaining tenure with w hat 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 estab lished tenure in Lincoln County Schools [;] this is uncontested. Then he went to Fayette County for one year and his employment was non

renewed. 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- 5

- 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 C ounty. (R. at 143

- 4 5

. ) As we explain, t hese paragraphs reveal the circuit court’s legal

error , as do its citations to inapplicable authority addressing the attainment of
t enure, not its portability from one district to the next. ( See R. at 145

- 46 (citin g KRS 161.740(1)(b) ; 2 quoting Board of Educ. of Bellevue v. Rothfuss , 639 S.W.2d
545 , 547 (Ky. 1982) (teacher never a ttained tenure ; part

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

J ust as the Board points out, 3 a 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
b y how long the teacher works in a particular school year , but by how long the tenured teacher goes without working b efore 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 n ext. 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 Retirem ent 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, w e use the terms interchangeably. Eighty years ago,
a te acher attained continuing service status if he was “qualified as to certification ” and “ t aught for at least four years . . . .” Id. at § 3.

Tenure w as 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 a ttained continuing service status in a prior district served two years in a su bsequent district , continuing service status would be lost if four

- fifths of the subsequent- 7

-

district’s board rejected the superintend e nt’s recommendation for a continuing
contract

. Id. In 1944, those rules were re - codified a s KRS 161.740. 1944 Ky. Acts ch. 98, page 181. In th at process, the legislature granted to the original board ( where continuing service status is initially sought ) the same power to reject tenure
st atus by a four

- fifths vote as enjoyed o nly 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 re tained 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 KR S 161.740 (1)(c)) with 1944 Ky. Acts ch. 98, page 181 ( se e 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, t he 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 i n “a” school district for four years sometime in the unspecified past . Beginnin g in 1964, t h os e four years had to be in the same district and either be four consecutive years or four non

- consecutive years within the p revious six.- 8

-

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 e mployed 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
161.7 40(1)( c )). That is, the teacher had to start all over and satisfy , in the subsequent district, the same r equirements 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 versio n was rejected and replaced by one that seemed to be more favorable to portability . Beginning in ‘74 , a teacher with continuing service status who bec ame 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- 9

-

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, w hen a teacher claimed tenure in Owsley County, the school board found a way to de ny 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 64 5

- 4 6. But his claim to a continuing contract the next year turned out not to be protected by newly amended KRS 161.74 0(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 servi ce 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, t he teacher in Carpenter resigned before taking his next t eaching position in Bracken County and that was that , said- 10

-

the Supreme Court. Applying KRS 161.720(4)(a), the Court held h is resignation terminated his tenure. He taught only one year in Bracken County and never re

attained 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 rec ognized 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 sho uld be addressed to the legislature.” Apache Coal Co. v. Fuller , Ky., 541 S.W.2d 933, 935 (1976). Id. at 646. Apparently, some one heeded the advice to cry for modification.

In 1982, at the second legislative session after Carpenter was rendered, the L eg islature suppl emented KRS 161.740 (1)(c) with new language that would pr ohibit Carpenter

- based use of KRS 161.720 to de prive 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 term inated 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- 11

- school district, under conditions herein set forth, for a period of up to seven (7) months from the time employment in the first school dis trict has terminated. Id. ( supplementing K RS 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 wh ile 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.
Th is prohibition re m ains 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 distri ct 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 L egislature clearly intended that no other statute from KRS 161.720 to KRS 161.810 was to bear o n the determination- 12

-

of portability of a teacher ’s continuing service status. By deciding the issue based on KRS 161.720(2), t he circuit court in this c ase 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 trib unal

.

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

.- 13

- After Smith left Fayette County Public Schools at the end of the 2012

- 2013 academic year, he did not begin employment w ith Mercer County P ublic
S chools 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 P ublic S chools’ academic year would have to have end ed around March 8, 2013. It cannot be argued rationally that it did.

There is no evidence t o contradict the proof that Smith w as 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 indicat es 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 o r that he had engaged in conduct to justify his termination. B y operation of KRS 161.740(1)(c),- 14

-

Smith was entitled to continuing contract status and the Board agreed to that continuing contract beginning July 1, 2018.

Having resolved the p ortability and retention of Smith’s continuing service status in accordance with KRS 161.740(1)(c), th e Court next concludes t he Laurel Contract is enforceable and Smith i s entitled to rely on i t. 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 u nder these facts )

.

When Superintendent Bennett, as the Board’s agent, wrote to Smith on May 1, 2019, denying him the right s the Laurel Contract grants him to teach in the Laurel County schools, the Board breached th at c ontract. 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 O pinion.

ALL CONCUR

.- 15

-

BRIEF S AND ORAL ARGUMENT FOR APPELLANT:
P eter J. Ja nn ace Louisville, K entucky BRIEF FOR APPELLEE S BOARD OF EDUCATION OF LAUREL COUNTY AND DOUG BENNETT : Larry G. Bryson London, K entucky
BRIEF FOR APPELLEE JAMES L. DICKINSON: Matthew F. Kuhn Heather L. Becker Frankfort, K entucky
ORAL ARGUMENT FOR APPELLE E S : Larry Bryson London, Kentucky