Dorr v. Fitzer

CULLEN, Commissioner. Appellant Helena Dorr taught school in the Boyd County School system, under limited contracts, for the school years 1966-67, 1967-68, 1968-69, and 1969-70. In May 1970 the board of education voted not to employ her for the 1970-71 school year, and she was not employed for that year. In September 1970 she brought suit against the board and its individual members, claiming that she was entitled to a continuing contract and to employment by virtue of that contract. She prayed that she be restored to employment in a continuing-contract status, and she asked for damages. The case was submitted on the pleadings, depositions, motions and memo-randa. The circuit court thereupon entered judgment dismissing the action. Mrs. Dorr has appealed from that judgment. The determination of the issue in this case involves construction and application of KRS 160.380 and 161.740. KRS 160.380 provides: “All appointments * * * of * * * teachers * * * shall be made only upon the recommendation of the superintendent of schools, subject to the approval of the board. If the board of education cannot agree with the superintendent as to any legally qualified person recommended by the superintendent, the board of education may appeal to the state board of education to review the case and the decision of the state board of education shall be final ⅜ * * ft In a number of cases, not involving continuing contract questions, this court held that the board of education cannot reject the superintendent’s recommendation for appointment of a teacher except upon a determination that the person recommended is morally unfit or educationally unqualified for the appointment. See Smith v. Beverly, 314 Ky. 651, 236 S.W.2d 914. However, it was held also that if the board votes to reject a recommended appointment, without the determination above mentioned, the rejection is valid if the superintendent thereupon withdraws the application, which withdrawal may be presumed from his recommending another appointee instead of insisting upon his initial recommendation. See Hale v. Board of Education of Calloway County, 254 Ky. 96, 70 S.W.2d 975. The continuing-contract statute, KRS 161.740, provides that when a currently employed nontenure teacher is recommended for reemployment after teaching four consecutive years, “the superintendent shall recommend said teacher for a continuing contract, and, if the teacher is employed by the board of education, a written continuing contract shall be issued.” This statute has never been construed in regard to its relation with KRS 160.380, on the specific question of whether the board cannot reject the superintendent’s recommendation for a continuing contract unless the board determines that the person recommended is morally unfit or educationally unqualified. Our task is to apply the foregoing statutes to the facts of the instant case. Prior to the meeting of the Boyd County Board of Education scheduled for May 11, 1970, the superintendent prepared four lists of teachers, in the following categories : “1. Teachers Eligible for Limited Contracts.” [464] “2. Teachers Eligible for Continuing Contracts.” “3. Teachers Holding Continuing Contracts.” “4. New Teachers Recommended for Employment.” Mrs. Dorr’s name was on List No. 2, along with the names of several other teachers. However, none of the lists had any language of recommendation connected with them, except that List No. 4, as noted above, purported to be a list of new teachers “recommended” for employment. On the day scheduled for the meeting the superintendent fell ill and was hospitalized. The meeting was held, however, without him, and an administrative employe of the system appeared in his place. The board treated the lists of names as recommendations and proceeded to vote on the appointments. From the list entitled “Teachers Eligible for Continuing Contracts” the board voted to employ all those listed except Mrs. Dorr and one other teacher. After the meeting adjourned the board chairman and. the administrative employe went to see the superintendent in the hospital, and told him of the board’s decision concerning Mrs. Dorr and the other rejected teacher. The superintendent then stated his acquiescence in and agreement to that action. On the basis of that acquiescence and agreement, the administrative employe wrote a letter to Mrs. Dorr, the following day, notifying her that she was not to be employed for the 1970-71 school year. The superintendent continued thereafter to concur in that disposition of his initial recommendation of Mrs. Dorr.1 We are not persuaded that KRS 161.740 is subject to the same interpretation as that given to KRS 160.380, of requiring the board of education to accept the superintendent’s recommendation absent a determination of moral unfitness or educational unqualification. The provision of KRS 161.740 that “if the teacher is employed by the board” a continuing contract shall be issued means that the board has an open choice whether or not to make the employment that will result in a continuing contract. This meaning was strongly indicated by the terms of KRS 161.740 prior to the 1964 amendment of that section; then, it provided that the teacher recommended for a continuing contract would receive a continuing contract unless the recommendation was rejected by a four-fifths vote of the board. Obviously this contemplated rejection without regard to cause, for if cause existed there would be no reason to require a four-fifths vote. And we find nothing in the words of the statute in its present form to require the construction that cause now is required to reject a recommendation for a continuing contract. Mrs. Door’s contention that she was deprived of a vested right to a teaching position without notice and hearing is not sustainable because KRS 160.380 is not applicable. Moore v. Babb, Ky., 343 S.W.2d 373, is not in point, because there the teacher had been employed for the fifth year before the board undertook to deny her a continuing contract, the employment for the fifth year ¿rising by implication from a statute which since has been repealed. The judgment is affirmed. All concur except JONES and STERN-BERG, JJ., who dissent. Footnotes [1] The superintendent later recommended another teacher as a replacement for Mrs. Dorr, and the board hired that teacher.