DEMOTIONof

ADMINISTRATIVE PERSONNEL

161.765.   Procedures for demotion of administrative personnel -- Appeal.

(1) A superintendent may demote an administrator who has not completed three (3) years of administrative service, not including leave granted under KRS 161.770, by complying with the requirements of KRS 161.760.(2) An administrator who has completed three years of administrative service, not including leave granted under KRS 161.770, cannot be demoted unless the following procedures have been complied with: (a) The superintendent shall give written notice of the demotion to the board of education and to the administrator. If the administrator wishes to contest the demotion, he shall, within ten (10) days of receipt of the notice, file a written statement of his intent to contest with the superintendent. If the administrator does not make timely filing of his statement of intent to contest, the action shall be final.(b) Upon receipt of the notice of intent to contest the demotion, a written statement of grounds for demotion, signed by the superintendent, shall be served on the administrator. The statement shall contain: 1. A specific and complete statement of grounds upon which the proposed demotion is based, including, where appropriate, dates, times, names, places, and circumstances; 2. The date, time, and place for a hearing, the date to be not less than twenty (20) nor more than thirty (30) days from the date of service of the statement of grounds for demotion upon the administrator.

(c) Upon receipt of the statement of grounds for demotion the administrator shall, within ten (10) days, file a written answer. Failure to file such answer, within the stated period, will relieve the board of any further obligation to hold a hearing and the action shall be final. The board shall issue subpoenas as are requested.(d) The hearing on the demotion shall be public or private, at the discretion of the administrator and shall be limited to the matters set forth in the written statement of grounds for demotion. The board shall provide to the administrator a verbatim transcript of the hearing. The board of education shall hear the case, with the board chairman presiding. The board, upon hearing the evidence and argument presented, shall retire to private chambers to arrive at a decision. Counsel or representatives for either party in the hearing shall not be consulted by the board unless the corresponding counsel or representatives for the other party are present and unless a verbatim transcript of such consultation is made for the record.(e) Within five (5) days from the close of the hearing, the board of education shall advise the parties of its decision and shall take official action in the case.

    (f) Appeal from final board action may be taken in the same manner and under the same provisions as an appeal from tribunal action under KRS 161.790.

HISTORY: (Enact. Acts 1974, ch. 356, § 2; 1990, ch. 476, Pt. IV, § 283, effective July 13, 1990.)

KRS 161.760

(3) Reduction of responsibility for a teacher may be accompanied by a corresponding reduction in salary provided that written notification stating the specific reason for the reduction shall be furnished to the teacher not later than ninety (90) days before the first student attendance day of the school year or May 15, whichever occurs earlier.

Who are administrators?KRS 161.720

(8) The term "administrator" for the purpose of KRS 161.765 shall mean a certified employee, below the rank of superintendent, who devotes the majority of his employed time to service as a principal, assistant principal, supervisor, coordinator, director, assistant director, administrative assistant, finance officer, pupil personnel worker, guidance counselor, school psychologist, or school business administrator. The term "administrator" shall also include those assistant, associate, or deputy superintendents who do not fall within the definition of "superintendent" as set forth in subsection (7) of this section.

(9) The terms "demote" or "demotion" for the purpose of KRS 161.765 shall mean a reduction in rank from one position on the school district salary schedule to a different position on that schedule for which a lower salary is paid. The terms shall not include lateral transfers to positions of similar rank and pay or minor alterations in pay increments required by the salary schedule.

When does a “Demotion” occur?

When there is a reduction in responsibilities and a corresponding reduction in pay (courts have said 25% is a significant reduction to be considered a demotion).

But a reduction in responsibilities alone—with no reduction in pay—may not be a Demotion.

Cooper v Board of Education of Somerset Independent Schools, 587 SW2d 845 (Ky. App.,

1979)

Cooper states a demotion occurs when an administrator is moved from one position on the district salary schedule to a different position for which a lower salary is paid. “The statute expressly provides that a lateral transfer to a position of similar rank and pay or minor alterations in pay increments required by the salary schedule shall not constitute a "demotion". Conversely, it appears that major alterations in pay increments resulting from such a transfer would constitute a demotion.

Here the reduction in appellant's earnings as a result of the transfer will be $4,571.00, approximately 25%, and we have no hesitation in classifying this a major, as opposed to a minor, reduction in earnings.

The Court also said “… every reduction in pay constitutes a demotion. If appellant had remained assistant principal, but because of decreasing enrollment fewer teachers were required at his school, the board under K.R.S. 161.760 could reduce his earnings because of the lessened responsibility and this would not constitute a demotion. Likewise there would not necessarily be a demotion if, after his transfer to the position of guidance counselor, conditions arose which mandated the elimination of the summer program and his salary was reduced because he didn't work as long as before.”

Miller v. Board of Educ., 610 S.W.2d 935 (Ky. App, 1980)

…the term "demotion" is defined by KRS 161.720(9) to mean "a reduction in rank from one position on the school district salary schedule to a different position on that schedule for which a lower salary is paid."

Estreicher v. Board of Educ. Of Kenton County, 950 S.W.2d 839 (Ky.,1997)

The Court said “The plain language of Ky. Rev. Stat. Ann. § 161.760 and Ky. Rev. Stat. Ann. § 160.390 makes a superintendent's action effective upon mere written notice to the affected employee of the action. Ky. Rev. Stat. Ann. §§ 160.390, 161.760.”

The Standard of Review: Miller v. Board of Educ., 610 S.W.2d 935 (Ky.

App, 1980)

The evidence against the principal supported the charges that she was unwilling or unable to follow significant directives of the superintendent. The board complied with Ky. Rev. Stat. Ann. § 161.765(2)(e) in that it voted to uphold the principal's demotion and so advised her at the conclusion of the demotion hearing.“In the present case, the charges which are supported by substantial evidence indicate an unwillingness or inability on the part of the appellant to follow, or to follow promptly, significant directives of the superintendent. We believe that this constitutes sufficient cause to demote the appellant. We should add that the evidence concerning what the Board apparently believed to be the appellant's shortcoming was disputed. There is much evidence that she was a very capable administrator; nevertheless, it is not the role of this Court to play the fact finder where facts are in dispute and there is substantial evidence on both sides of the question.”

Hooks v. Smith, 781 S.W.2d 522 (Ky. App, 1989)

This court recognized that it had spoken of an "administrator with tenure," Harlan County Board of Education v. Stagnolia, Ky. App., 555 S.W.2d 828, 830 (1977). But, the Court said “ Strictly speaking, however, an administrator has been given no right of tenure to an administrative position and may be removed from such position by the local board of education upon recommendation of the superintendent for any reason not offending some right protected by the state or federal constitutions or KRS 161.162. See KRS 161.765; Miller v. Board of Education of Hardin County, Ky. App., 610 S.W.2d 935 (1980). At best, the statute gives an administrator with at least three years experience an additional procedural opportunity to convince the board of the lack of merit in the superintendent's recommendation of demotion, or that it violates a constitutional or statutory right. In short, our statutory scheme does not appear to have created a "property interest" in a school administrator in continued employment as an administrator, although it does secure the right to certain procedural safeguards.”

Bailey v. Floyd County Bd. of Educ., 106 F.3d 135 (6th Cir, 1997).

The Court said “…The existence of a property interest depends largely on state law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Bishop v. Wood, 426 U.S. 341, 344-45, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976); Arnett v. Kennedy, 416 U.S. 134, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974). Government employment amounts to a protected property interest when the employee is "entitled" to continued employment. Roth, 408 U.S. at 577; Perry v. Sindermann, 408 U.S. 593, 601, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972). Neither mere government employment nor an abstract need or desire for continued employment will give rise to a property interest. Roth, 408 U.S. at 577; Gregory v. Hunt, 24 F.3d 781, 787 n.4 (6th Cir. 1994). Rather, a property interest exists and its boundaries are defined by "rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Roth, 408 U.S. at 577. 

“Under Kentucky law, certain employees enjoy property interests in their positions by statutory grant. For instance, under Kentucky's classified service, classified employees with status enjoy property interests in their jobs. KY. REV. STAT. ANN. § 18A.095(2) (Michie 1996); Williams, 24 F.3d at 1537-38 & n.4. Likewise, certified school employees are entitled to tenure under the Kentucky Teacher Tenure Act and, therefore, can support a legitimate claim of entitlement in their positions. See KY. REV. STAT. ANN. § 161.720-.810 (Michie 1994).

The Court then reviewed the contract to determine if there was a property interest in her job and said there could be “… if such an interest is conferred by contract. In Kentucky, unless the parties specifically manifest their intention to condition termination only according to express terms, employment is considered  "at will." Shah v. American Synthetic Rubber Corp., 655 S.W.2d 489, 491 (Ky. 1983); Nork v. Fetter Printing Co., 738 S.W.2d 824, 826-27 (Ky. Ct. App. 1987); see Grzyb v. Evans, 700 S.W.2d 399 (Ky. 1985) (explaining Kentucky's "at will" doctrine). An at-will employee is subject to dismissal at any time and without cause; consequently, an at-will employee cannot effectively claim a protectable property interest in his or her job.”Note: The Court Stated there was No Right to Pre-Termination Hearing because there is no Property Right:“Absent a property interest in her position, however, Bailey was not entitled to any pre-deprivation process whatsoever. Williams v. Commonwealth of Kentucky, 24 F.3d 1526, 1537 (6th Cir. 1994).

Shepherd v. Boysen, 849 F. Supp. 1168 (E.D., Ky, 1994)

The Court said:“…absent a property interest, plaintiff has no right to either a pre- or post-deprivation hearing. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 539, 105 S. Ct. 1487, 1491, 84 L. Ed. 2d 494 (1985); Guarino v. Brookfield Tp. Trustees, 980 F.2d 399, 408 (6th Cir. 1992)

Culbreth v. Covington Bd. of Educ., 2008 U.S. Dist. LEXIS 97168 (2008; Judge Bunning)

(Mary Ann Stewart)

Under Kentucky law, some employees - such as teachers who have remained employed for more than four years possess property interests in their positions by statutory grant. See K.R.S. § 161.740; Bailey, 106 F.3d at 141 ("[C]ertified school employees are entitled to tenure under the Kentucky Teacher Tenure Act and, therefore, can support a legitimate claim of entitlement to their positions."). There exists, however, no statute similar to the Kentucky Teacher Tenure Act which entitles administrators to continuing employment as administrators; as such, under Kentucky law administrators do not possess a property interest in their positions cognizable by the Fourteenth Amendment. See Bailey, 106 F.3d at 141.

Plaintiff contends that, despite the unequivocal holding of Hooks, she is entitled to a property interest in her position as an administrator because the Kentucky Supreme Court has used the term "administrative tenure" in reference to the procedural safeguards contained in section 161.765. See Bd. of Educ. of Kenton Co. v. Paul, 846 S.W.2d 675, 676 (Ky. 1992) ("The clear legislative intent of the act is to provide a probationary period for administrators of three full years before 'administrative tenure' attaches."). This is a specious argument; the Kentucky Supreme Court's reference to "administrative tenure" in Paul neither overruled Hooks, nor created a property interest in administrative employment. The Kentucky Supreme Court used the term "tenure" as it is employed in Hooks, as a term of art referencing the additional procedural mechanisms afforded to administrators once they have completed three years of administrative service. Hooks, 781 S.W.2d at 523 ("This court has spoken of an 'administrator with tenure.' Strictly speaking, however, an administrator has been given no right of tenure to an administrative position . . . .").

“…Therefore, as Kentucky law makes clear that administrators enjoy no property interest in continued employment as administrators that is protected by the Due Process Clause of the Fourteenth Amendment, Plaintiff's procedural due process claim fails as a matter of law.

“…Under Kentucky law, an administrator must be personally certified by the state in the position he or she holds. Pettit v. Board of Educ. of Monroe County, 684 S.W.2d 7 (Ky. Ct. App. 1984) (discretionary review denied 1985). In Kentucky, administrators have a sort of quasi-tenure in that, before three years, they may be removed for any reason that is not illegally discriminatory or arbitrary and capricious. Board of Educ. of Kenton County v. Paul, 846 S.W.2d 675 (Ky. 1993); Hooks v. Smith, 781 S.W.2d 522 (Ky. Ct. App. 1989); Miller v. Board of Educ. of Hardin County. 610 S.W.2d 935 (Ky. Ct. App. 1981). If the administrator has served more than three years in that capacity, certain procedures must be followed. KRS 161.765.

The Procedure:a) The letters.b) The Hearing Process.

The Letters.1. The letter of Demotion from the

Superintendent. It Should:

a) Be written noticeb) Be sent to the administrator

Refer to KRS 161.760(3) is referenced in KRS 161.765 (“…by complying with the requirement of KRS 161.760”). The notice should contain:

a) Reduction of responsibilityb) Reduction in salary stating the specific reasons for

the reduction….Is this “specific reasons for the reduction” language redundant? Probably not since KRS 161.670 is used with teachers, administrators with BOTH MORE AND LESS THAN THREE (3) YEARS OF EXPERIENCE.Best to state salary of last year, give salary of the upcoming year. Specifics are always better. But if you don’t know exactly refer to the salary schedule and the employee’s years of experience and rank.

With less than three (3) years of experience Administrators, the process is complete.

1. With administrators with more than three (3) years experience, the process continues:

a) Be written noticeb) Be sent to the administrator and to the

Board

The burden then shifts to the administrator:If the administrator wishes to “contest” the demotion, he “shall” within ten (10) days, file “a written statement of his intent to contest” to the demotion with the superintendent. “If the administrator does not make timely filing of his statement of intent to contest, the action shall be final.”       

1. A specific and complete statement of grounds upon which the proposed demotion is based, including, where appropriate, dates, times, names, places, and circumstances;

    2. The date, time, and place for a hearing, the date to be not less than twenty (20) nor more than thirty (30) days from the date of service of the statement of grounds for demotion upon the administrator.

The burden then shifts back to the administrator: Upon receipt of the statement of grounds for demotion the administrator shall, within ten (10) days, file a written answer. Failure to file such answer, within the stated period, will relieve the board of any further obligation to hold a hearing and the action shall be final.

If the Administrator files the Answer, then the Demotion Process begins.

By this time the date, place and time of the hearing has been set.

The process is then in the control of the Board.

The Board should have an attorney to advise it and rule on motions during the hearing process. The Superintendent will have an attorney representing him/her in the demotion process. The Administrator (probably) will have an attorney representing the administrator in the hearing.

The Board’s Attorney: Should have telephone conference with attorneys for Superintendent and Administrator and issue an

Order outlining decisions from the telephone conference.

1. Should enter an Order relating to the Procedure to Be Followed. 2. Address delivery of pleadings: Hand delivery, electronic mail, US Mail, etc.3. Subpoenas4. Exchange of documents, for example, 5 days prior to hearing. Witness list,

with addresses, etc., 5 days prior to hearing. Copies of all to Hearing Officer.

5. Whether the hearing is public or private.6. Court Reporter.7. Swearing of witnesses. Separation of witnesses.8. Hearing procedure:

a) Superintendent Openingb) Administrator Openingc) Superintendent witnesses; allow cross examinationd) Administrator witnesses; all cross examinatione) Administrator closingf) Superintendent closing.g) Matter submitted to Board, private deliberation for decision. Five (5) days from

close of hearing for Board to decide and take official action.

The Board Chair will issue/sign subpoenas.

Procedure:The administrator may have the hearing

public….what if it is?

KRS 161.765 (2)(d):

The hearing on the demotion shall be public or private, at the discretion of the administrator and shall be limited to the matters set forth in the written statement of grounds for demotion.

The Demotion Hearing requires notice of a Special Called Board Meeting. The wording may depend on whether the hearing is public or private. In either event, the meeting

requires Notice of the Public Meeting.

61.823.   Special meetings -- Emergency meetings.

(1) Except as provided in subsection (5) of this section, special meetings shall be held in accordance with the provisions of subsections (2), (3), and (4) of this section.

(2) The presiding officer or a majority of the members of the public agency may call a special meeting.

(3) The public agency shall provide written notice of the special meeting. The notice shall consist of the date, time, and place of the special meeting and the agenda. Discussions and action at the meeting shall be limited to items listed on the agenda in the notice.

(4)  (a) As soon as possible, written notice shall be delivered personally, transmitted by facsimile machine, or mailed to every member of the public agency as well as each media organization which has filed a written request, including a mailing address, to receive notice of special meetings. The notice shall be calculated so that it shall be received at least twenty-four (24) hours before the special meeting. The public agency may periodically, but no more often than once in a calendar year, inform media organizations that they will have to submit a new written request or no longer receive written notice of special meetings until a new written request is filed.

   

The meeting must comply with the Conditions of an Open Meetings (KRS 61.840)

61.840.   Conditions for attendance.

No condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. No person may be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting.

If it is a private hearing, are the documents in the hearing private or must they be disclosed in an Open

Records Request?

97-ORD-128

“… Because KRS 161.765 does not specifically exclude from public inspection records pertaining to the demotion of an administrator, we find that the Open Records Act compels disclosure.

If it is an Open/Public Hearing, look at 03-OMD-178.

This is an Open Meeting decision, but was a demotion hearing for an administrator.

I was the advisor to the Board and parts of the meeting were closed when I met with the Board to discuss the procedural aspects of the hearing.

A member of the public complained of a violation of the Open Meetings law for different reasons. The Kentucky Attorney General said: “The hearing procedure comported with the 'meeting room conditions' standards set forth in KRS 61.840.

The hearing was conducted in the library of the Spencer County High School. The room was configured with the Board members, hearing officer, and witnesses facing the audience, with counsel tables facing the Board. The high school library was chosen as the hearing site and serves as the usual site for Board meetings since it has superior acoustics when compared to other rooms which have been utilized for Board meetings. No one complained about an inability to hear the proceedings.

The hearing proceeding did not present an overflow crowd where those who desired to attend could not enter the room. The room was configured insofar as was feasible to permit effective observation of the meeting and notwithstanding the lack of a public address system, . . .….additional chairs were provided to audience members who wished to be seated, “Those seated in the back of the room and did not encounter any difficulty hearing the attorneys or witnesses." The AG’s office said the meeting room conditions did not violate KRS 61.840 and there is certainly no basis for voiding the action of the Board as relates to this individual adjudication.

Consider the balance between Open/Public Meetings and Privacy Rights of Students

(FERPA) if student records/names are involved.

With student names in public, use numbers or initials. I used initials in recent hearing and it works well. Attorneys agreed on the record to file no public record using student names.

When students are called to testify about their own educational records, the attorneys should agree on the record this part of the hearing will be closed. If they do not agree ask the Hearing Officer to Order. Do FERPA rights trump the rights of a teacher/public in public hearing? Yes.

Records:

KRS 61.878(2)(k) Records or information the disclosure of which is prohibited by federal law or regulation.(2)(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly;Meetings exception with students’ testimony or mention of student names:KRS 61.810(1)(k) Meetings which federal or state law specifically require to be conducted in privacy.KRS 160.700 et seq.(KFERPA) and 20 USC § 1232g protects the privacy of students.