Reis v. Campbell County Bd. of Educ., 95-SC-656-DG

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtSTEPHENS
Citation938 S.W.2d 880
Parties116 Ed. Law Rep. 830 Lawrence REIS, Appellant, v. CAMPBELL COUNTY BOARD OF EDUCATION, Appellee.
Docket NumberNo. 95-SC-656-DG,95-SC-656-DG
Decision Date19 December 1996

Page 880

938 S.W.2d 880
116 Ed. Law Rep. 830
Lawrence REIS, Appellant,
No. 95-SC-656-DG.
Supreme Court of Kentucky.
Dec. 19, 1996.
As Amended Dec. 20, 1996.

Page 881

Arthur L. Brooks, Jane V. Fitzpatrick, Jill Osborne, Lexington, for appellant.

Garry L. Edmondson, Kenton County Attorney, Covington, for appellee.

STEPHENS, Chief Justice.

This Court granted discretionary review in the present case to decide whether KRS 161.790(8), which governs the right to appeal from a decision of a three-member tribunal concerning the termination of a tenured teacher's contract, is unconstitutional. The Campbell Circuit Court dismissed the petition by the Campbell County Board of Education [hereinafter Board] for a declaratory judgment to determine whether the Board has a guaranteed right to appeal the judgment of a tribunal and whether KRS 161.790(8) is arbitrary and unconstitutional. The Board subsequently appealed to the Court of Appeals which, by a unanimous decision, reversed the Campbell Circuit Court's order. After a careful review of the case, we affirm the decision of the Court of Appeals.

Appellant, Lawrence Reis, is a tenured teacher certified to teach kindergarten through the eighth grade in Kentucky. He has been employed by the Campbell County school system since 1977. In April, 1993, the Campbell County Superintendent notified appellant that his teaching contract was terminated due to his inefficiency and incompetency as a teacher. Appellant thereafter gave notice to the Superintendent and the Chief State School Officer of his intention to answer the charge and, pursuant to KRS 161.790, requested a hearing on the matter. The Chief State School Officer then appointed a three-member tribunal, as required by KRS 161.790(4), to conduct a hearing concerning appellant's termination.

The tribunal convened in June, 1993, and was presented with testimony and evidence by appellant and the Board relating to the charges against appellant. Reaching a different conclusion than the Superintendent, the tribunal determined that appellant's teaching contract should not be terminated. Because the language of KRS 161.790(8) grants a teacher the right to appeal the tribunal's decision to the circuit court and is silent concerning a board of education's right to appeal, the Board subsequently filed a petition for a declaratory judgment in Campbell Circuit Court, challenging the constitutionality of KRS 161.790(8) and requesting it be granted the right to appeal the tribunal's decision concerning appellant's termination.

The Campbell Circuit Court dismissed the Board's petition for declaratory judgment and ordered appellant to be reinstated to his teaching position with reimbursement for all lost wages and benefits. In its order of dismissal, the circuit court held that "[t]here is no inherent right of appeal from the action of an administrative agency to a court." Specifically, the court stated that appeals of administrative rulings are controlled by statute and, no statutory provision existed in this case which allowed the Board to appeal the tribunal's decision. In addition, the circuit court stated that "[f]or the purposes of termination proceedings pursuant to KRS 161.790, the tribunal appears to act for and takes the place of the Board itself," thereby making the tribunal an agent of the Board. Therefore, the circuit court concluded, "the Board itself has no authority to contest the actions of its own agency."

Page 882

In a unanimous decision, the Court of Appeals reversed the circuit court's order. Analyzing whether the Board had the right to appeal apart from an express statutory grant, the court maintained that this inquiry turned upon whether a board of education was extended the protection of Section 2 of the Kentucky Constitution which prohibits "[a]bsolute and arbitrary power over the lives, liberty and property of freemen ...." The Court specifically noted that Section 2 applies to corporations and, thus, the inquiry turns upon whether the Board was an "entity" which was entitled to constitutional protection. To answer this question, the Court of Appeals looked to KRS 160.160(1) which describes a board of education as "a body politic ... corporate with perpetual succession." The court then discussed the powers and authority of boards of education (i.e. to sue and be sued, to make contracts, expend funds, etc.). The court stated that the Board's most important power was "to do all things necessary to accomplish the purpose for which it was created." The court concluded that the Board's power to sue found by this Court in Rose v. Council for Better Education, Inc., Ky., 790 S.W.2d 186 (1989), was analogous to the power to appeal in this case. Moreover, the Court of Appeals held that our interpretation of Section 2 of Kentucky's Constitution, as stated in American Beauty Homes v. Louisville County Planning Commission, Ky., 379 S.W.2d 450, 456 (1964), applies to the present case and grants the Board an inherent right to appeal the tribunal's decision based on its arbitrariness.

Determining that the Board was an entity which deserved the protection of Section 2, the Court of Appeals shifted its inquiry to whether the three-member tribunal was an administrative body from which the Board could seek judicial review. The court compared the disciplinary process established in the 1990 Kentucky Education Reform Statutes [hereinafter KERA] statutes, with the prior existing mechanism, maintaining that it was obvious that the appointed tribunal was not an agent of the Board. Thus, the court concluded that the Board must be allowed to appeal such rulings to the circuit Court.

Finally, the Court of Appeals noted that Kentucky's General Assembly failed to include language within the pertinent statute which would grant a board of education the right to appeal. The Court asserted:

This court cannot cure the statute's omission of the board's right to appeal by adding words to give KRS 161.790(8) constitutionally permissible meaning....

However, we are able to save the constitutionality of KRS 161.790(8) without judicially adding words which grant the board of education a right to appeal the tribunal's decision since American Beauty Homes mandates judicial review of administrative action based upon arbitrariness grounds "even in the absence of statutory authorization of an appeal." 379 S.W.2d at 456. In other words, the board of education has a right to appeal the tribunal's decision to the circuit Court on the grounds that the decision is arbitrary notwithstanding the express language of KRS 161.790(8).

Consequently, we granted appellant's motion for discretionary review to determine whether the Court of Appeals was correct in holding that the Board has the right to appeal the tribunal's decision, even where the General Assembly has expressly given the right to appeal solely to the teacher involved. Because this broad question presents several sub-issues, we will address each separately.



Appellant argues that the Court of Appeals has circumvented the clear language of KRS 161.790(8). He further maintains that the Court of Appeals erroneously held that an agency relationship did not exist between the tribunal and the Board. Appellant contends that the tribunal is an agent of the Board simply because the Board provides for the tribunal's travel expenses and provides a court reporter for the hearing. We agree with the Court of Appeals that appellant did not meet his burden of proving an agency relationship between the tribunal and the Board before the circuit court. Wright v. Sullivan Payne Co., Ky., 839 S.W.2d 250, 252 (1992).

Page 883

The passage of the KERA, the legislative response to our decision in Rose v. Council for Better Education, Inc., supra, which declared Kentucky's common school system unconstitutional, resulted in the amendment of KRS 161.790, a statute relating to the termination of a contract by a school board. Before the amendment to KRS 161.790, the local board of education was "cast into and occupie[d] the roles of employer, investigator, accuser, prosecutor, jury and judge ...." Board of Education of Pulaski Co. v. Burkett, Ky., 525 S.W.2d 747, 747 (1975). See Osborne v. Bullitt County Board of Education, Ky., 415 S.W.2d 607 (1967). Moreover, prior to its amendment, KRS 161.790 vested sole authority to terminate tenured teachers in local boards of education. KRS 161.790(3)-(4) (1988).

Under the current version of KRS 161.790, the Board retains only three responsibilities in the teacher termination process. First, the Board must "provide for a tape and stenographic report of the proceedings and furnish the teacher with a copy." KRS 161.790(5). Second, the Board must "pay each member of the tribunal a per diem of one hundred dollars ($100) and travel expenses." Id. Finally, the Board must pay for the costs of the transcript of the hearing before the tribunal. KRS 161.790(8).

Furthermore, the superintendent is now given authority to initiate termination of a teacher's contract by "furnish[ing] the teacher with a written statement specifying in detail the charge against the teacher," prior to notifying the board of education of termination of the teacher's contract. KRS 161.790(3). The superintendent has also been given the authority to "suspend the teacher pending final action to terminate the contract, if, in his judgment, the character of the charge warrants the action." KRS 161.790(7). The remaining powers of hearing the teacher's answer to the charge and terminating the teacher's contract by a majority vote, for so long within the sole province of the board of education, now reside in the three-member tribunal appointed by the chief state school officer. KRS 161.790(4)-(6).

Basically, KERA's new composition of KRS 161.790 removes all control from a board of...

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