The legal folks at KDE have helped KSN&C provide a better understanding of the legal strictures that make it difficult, but perhaps not impossible, for the Fayette County Board of Education to broaden the sources of input to its Superintendent Screening Committee. Here's the short story:
1. KDE lacks the authority to waive KRS 156.160, which governs screening committees
2. When the law says, “shall be composed of” the Attorney General has interpreted that to mean “may only be composed of.”
3. Therefore, membership is limited to only those members specifically listed in the law.
4. However, OAG 91-3 describes how a local board of education may obtain feedback from groups not represented on the screening committee.
“Nevertheless, while the board of education receives recommendations from the screening committee concerning the appointment of a superintendent, the board is not required to appoint a superintendent from the committee’s recommendations. KRS 160.352 (3). Therefore, it is apparent that the board of education has the discretion to consult with and to receive recommendations, as well, from other sources than the committee, i. e., interested citizens or groups of citizens. This would enable the Board to honor its commitment to Affirmative Action, for example, to the extent that this has not been accomplished through representation on the screening committee.Interested parties might also contact members of the screening committee to furnish information on qualified applicants and concerns regarding the selection process.Accordingly, while we find that the screening committee is limited to representation by two teachers, one board of education member, one principal and one parent, as set forth in the statute, the possibility exists for other interested groups or individuals to share any and all information with the board of education concerning qualified applicants.”
This from KDE spokeswoman Nancy Rodriguez:
The Kentucky Board of Education (KBE) only has statutory authority to waive administrative regulations under the provisions of KRS 156.160 (2)(a). The KBE does not have statutory authority to waive statutes except in very limited circumstances specifically granted by the General Assembly (eg. Districts of Innovation). The Kentucky Department of Education (KDE) and/or the chief state school officer, except where expressly permitted by statute, does not have statutory authority to waive statutes or regulations without action by the KBE described above.
The superintendent search process is governed by statute (KRS 160.352). The statute states that “A screening committee shall be composed of…” (emphasis added by KDE) and goes on to list the members. KRS 160.352 has been interpreted by a 1991 Opinion of the Attorney General (OAG 91-3, attached) that states in part: “…the screening committee may only be composed of those representatives authorized by KRS 160.352.” The opinion goes on to quote Smith v. Wedding, Ky., 303 S.W. 2d 322 (1957) that holds “It is a primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned.” As a result, following the analysis of OAG 91-3, it is the position of KDE that membership of the superintendent screening committee must be limited to those members specifically identified in statute.
While KDE agrees that a student representative is a good idea, the OAG indicates that this is an addition to the committee that will need to occur via an amendment to the statute by the General Assembly.
However, I encourage you to read the language of the OAG at the bottom of page four that describes how a local board of education may obtain feedback from groups not represented on the screening committee. The local board is represented by its own counsel who will guide the district if such a petition or request were presented to the local board.