The Kentucky Department of Education in a letter told Montgomery County Schools superintendent Joshua Powell that his fight is over.
The two-page document from KDE attorney and associate commissioner, Kevin Brown, was sent March 31, 2015 to Powell’s attorney and copied to Terry Holliday, the current commissioner. Brown cuts Powell’s claims off at the knees by telling him the local school board does have the power to suspend him, that KDE supports it and that the department won’t be intervening.
Here it is:
CLICK EACH TO ENLARGE
March 31, 2015
Mr. C. Ed Massey, Esq.
Re: Local Board of Education Authority
Dear Mr. Massey:
Please allow this correspondence to serve as a response to your letter dated March 19, 2015, requesting a written statement regarding the legal authority of a local board of education to suspend its superintendent and any authority of the commissioner over a superintendent suspension. While I serve as counsel for the Kentucky Department of Education (KDE) and its governing board, the Kentucky Board of Education (KBE), and I am not providing legal advice in response to your request, I am providing KDE’s longstanding position on this issue in response to your request, per my agency’s protocol when presented with inquiries from the public.
A local board of education’s authority is provided in KRS Chapters 152-162. Though other statutes with board authority are peppered in other chapters of the KRS, these are the chapters with the greatest concentration of local board authority in Kentucky law. KRS 160.160 broadly describes the authority of the local board of education and includes the catch-all provision of authority to “do all things necessary to accomplish the purposes for which it [the board] is created.” Similarly, KRS 160.290 provides an additional listing of general powers of the local board of education. This authority is stated generally and includes “general control and management of the public schools in the district” and the authority to “provide for other services as it deems necessary for the promotion of education and the general health and welfare of pupils,” not inconsistent with KBE regulations.
Specific to its authority over the superintendent, KRS 160.350 provides the hiring and termination authority to the local board of education. Inherent in this authority is the authority to suspend a superintendent. The statute itself only involves the commissioner and requires his approval if the local board seeks the superintendent’s removal for cause. The commissioner’s authority over a board’s decision to suspend a superintendent is not provided and cannot be read into the letter or spirit of the statutes. Additionally, the explicit language of the teacher tenure statutes exclude suspension appeal rights for a person serving as a superintendent. See KRS 161.720(1)’s definition of “teacher” which specifically states “with the exception of the superintendent” and KRS 161.790’s teacher tribunal appeal rights for a suspended “teacher”.
Kentucky statutes and regulations are specific as to when KDE or KBE approval of local board or district action is required. Though KRS 160.350 includes a requirement for the commissioner’s approval of a board’s proposal to remove a superintendent for cause, it does not include and no known statute includes a requirement for a local board to seek or receive the commissioner or the KBE’s approval of the board’s suspension of a superintendent.
An explicit grant of authority to the KBE to suspend or remove a superintendent is provided in KRS 156.132. KRS 156.136 provides further authority to KBE to name the individual who shall fill the vacancy in the office of superintendent created by a suspension of the superintendent. The reason for the explicit statutory grant of authority to suspend a superintendent and to fill the vacancy during the suspension appears to be the result of the KBE’s otherwise distant relationship to the employment of a school district superintendent; however, as stated above, this authority is inherent in the local board’s authority over the employment of the district superintendent. When a local board exercises its authority to suspend a superintendent it must as well exercise its authority to name a person to fill the vacancy during the suspension of a superintendent to ensure the continuous operation and leadership of the district.
In summary, the local board’s authority to management the school district and to employ a superintendent inherently includes the authority to suspend the superintendent and to name an interim superintendent to lead the district during the suspension. The statutes do not grant the commissioner authority over superintendent suspensions and do not grant a superintendent the right to appeal a suspension to the commissioner or to the KBE.
You have stated in your letter that you are contemplating subpoenaing the commissioner to testify under oath regarding this matter. As this is an issue of law and legal interpretation, it appears highly likely that a witness produced to offer an opinion as to law would not be accepted by a court as that is the steadfast and undeniable role of the court itself.
Kevin C. Brown
Associate Commissioner and General Counsel
cc: Dr. Terry Holliday
Now you know that KDE has decided to give up on Powell and won’t be backing him. His repeated claims that he had the support of Terry Holliday are dead in the water.
If you’re keeping score? The school board, multiple judges and the Kentucky Department of Education have now told Powell to back up a taste.
If you read between the lines? That letter says that after the school board fires Powell tonight, Holliday will sign off and Powell will be forced to move on.
This isn’t the end. Not even close. It’s just beginning to get crazy.
See you this evening with updates from the board meeting.