*1 809 to a ties have consented resolution record; existing
ease on the nor the trial OF BOONE BOARD OF EDUCATION necessarily liberty court at to treat the case Kentucky, Appellant, COUNTY, if it final as were submitted for a resolution v. However, upon stipulated on a record. re- BUSHEE, al., Appellees. et view, parties Joan we find that the herein consent- record, existing to a on ed resolution No. 93-SC-980-DG. thereby proceed permitting the trial court agreed-upon on the submission an record. Kentucky. Supreme Court findings specific The trial made of fact court 22, Dec. separately set forth its conclusions of law provided by CR 52. Counsel for both clearly parties, argument, reaffirmed at oral procedure. problem
There no with the fact that attorney party appeal
an for a on waive ‘assignment expressly
an of error’ or either Sales,
impliedly. Allen v. O.K. Mobile Home
Inc.,
(1978).
Ky.App.,
formal if there remains presented
where a case been
appellate upon an court issue directed at the Commonwealth,
merits of the case.
Use
McCreary
Edu
Benefit of
Cincinnati,
Co.,
Ry.
cation
T.P.
v.
N.O. &
(1932).
684,
Ky.
It in this proof record expert appellee
that an for the concluded
administrative cost with issu- associated $2.38,
ance permit and enforcement of a was
while, hand, other from the same
proof, appellant’s expert witness conclud-
ed administrative cost associated permit
issuance and enforcement of a was court, having trial determined
$80.52. cost, permit was a reasonable $60.00 brings clearly
therefore his decision within of review court standard was not erroneous determination. judgment of Franklin Circuit Court is
affirmed.
All concur.
Special FREDERICK E. Justice SPAIN, sitting J.
NICHOLS
810
STEPHENS, Chief Justice. appeal leg- concerns the intent of the islature decision-making when authority to both school boards and enacting individual school councils Kentucky Educational Reform Act [hereinaf- parties ter question “KERA”]. scope group’s delegated authority. each specific, parties To be more ask to what operate extent can the school council as an making body? autonomous decision appellees, who include officers County Boone Education Association County system teacher in the Boone School Council”], [hereinafter “the filed a declarato- ry judgment against appellant, action County Boone Board of [hereinaf- Education Board”], “the challenging portion ter of the policy Board’s created to meet re- quirements. requires KRS 160.345 that each adopt policy “local board of education shall implementing for school-based decision mak- ing” complies that addresses and with the requirement additional that each form school a council that has “the to set policy board consistent with district policy....” KRS 160.345. specific policy provision of the Board’s question reads:
By September each Board of Education meeting, each council submit in writ- shall ing approval for Board review and following: goals objectives 1. Measurable for year. goals shall related 940, 1, goals listed in HB Part 2 3.1 Section Implementation plan achieving for 2. goals objectives. evaluating Method the effectiveness Chenoweth, III, Fogle, Robert F. C. John implementation plan.
Frankfort, Florence, Dusing, Gerald F. appellant. Yewell, Owensboro, David for amicus curi- provision The Council contends this Kentucky
ae Ass’n. School Boards province Board’s invades the Jr., Walker, Brooks, legisla- Ron L. Arthur L. school councils as envisioned Lexington, appellees. pursuing when the broad educational ture 940, 1, expected acquire tucky 1. HB Part Subsections 2 and 3 refer to Kentucky objectives now codified KRS 158.645 and 158.6451 that to be achieved students capacities set forth seven students in Ken- schools. legislative framework that the former argues of KERA. The found reforms Council enu- required not an efficient common did responsibilities essentially usurps guaranteed by Kentucky Con- merated authority delegated result, to it the Council of the we As a directed stitution. *3 by legislature independent the to act as an redesign a Assembly “recreate and General making body. The held decision trial court comply system that will with standards new overstep that the did Board’s not ... Id. we set out.” statutory Appeals authority. The Court of following: included the These standards by reversed. We affirm the result reached establishment, maintenance, (1) The under- Appeals the Court of but believe our Kentucky is funding of schools in common standing of KERA to be than that different As- responsibility the General sole by expressed opinion that Court. will This sembly, and attempt clarify designated participato- to public ry for contributor to the roles each system. education (6) by shall be monitored Common schools Before is we address substantive they Assembly to that the General assure however, delegated authority, must sue of we waste, operated duplication, are with no no justicia- consider there first whether exists political mismanagement, no and with no controversy. The Board that ble contends influence. Id. at 212-3. specific policy request no because or in Rose the General We also found Council, appi’oval by been submitted for any Assembly delegate to could “choose present rights controversy there is no over provide a responsibility to common school [its or liabilities. ... the local system] to institutions such as action, declaratory judgment In a it has at im- of education.” Id. 216. It is boards by recognized been well this court that the holdings portant recognize to these because controversy question present is not one of a KERA, they impetus provided the for Board, by as contended but rather provi- they place enable us to “justiciable controversy whether there is a today question within their relevant sions present rights, over duties or liabilities.” context. Co., Liberty Dravo v. Nat. Bank & 267 Trust upon decision rested The crux the Rose 95, (1954) S.W.2d 97 inefficiencies in the common school although judg- is so “This the effect of the favoritism, nepotism, by “improper created case, prospective.” upon ment is Id. In this at of school monies.” Id. and misalloeation request required submission of the issues, addressing these KERA In policy, approval there will be either or provid- responsibility for guarantees disapproval the Board. in itself is necessary ing the financial means to justiciable controversy; ap- whether this system rests the Gen- a common school with proval required can be at all. The result of Assembly. ac- KERA also maintains eral approve disap- the Board’s to decision or countability problems re- potential with ability prove upon would no effect have at the level of the spect to these issues require the approval place. to in the first As hand, Assembly. On other General result, we do unable this not feel to address partic- meaningful KERA ensures active justiciable
present
an act of
issue before
teachers,
part
parents,
on the
ipation
disapproval
or
occurs.
students,
aspects
recognizing
question
We turn now to the
not necessitate statewide
of education that do
authority. To
this
believe
address
issue we
control.
helpful
first
the his-
would
consider
statutory ap-
Assembly’s
background leading to
General
torical
the enactment
“eliminatfing]
which were
Assembly
proach
of KERA. The
enacted
areas
nep-
ground for
following
KERA
court’s
in Rose
fertile
favoritism
this
decision
once
and/or
Inc.,
Education,
Ky.,
take
has been addressed
otism to
root”
v. Council
Better
(1989).
Gorman, Ky., 839
opinion,
Chapman
In
we
court in
v.
judice, we address Standards, which duties the General which mance was established delegate 89-151, chose to to other decision charged Executive Order was bodies, making retaining while con- statewide framing for all trol of the allocation of school funds and public schools of the Commonwealth meas- accountability for the overall success urable terms.- KRS 158.6451. These six state common system. goals read as follows: (a) expect Schools shall high
To understand how these level of distribu tions of schematically orga were achievement of all students. nized, turn we to the statutes to review (b) develop Schools shall their students’ *4 provisions of KERA to define its overall ob ability to:
jectives. throughout pertinent Pervasive all 1. Use basic communication and mathe- provisions, when statu considered as a whole purposes matics skills for and situations framework, tory important is one theme. they lives; throughout will encounter their strategic point essential of KERA the Apply concepts 2. principles core and decentralization making of decision mathematics, sciences, arts, so participants as to involve all in the school humanities, studies, practical social and system, affording opportunity each the to living they studies to situations will en- actively contribute pro to the educational lives; throughout counter their cess. The of KRS over 158.645 whelmingly reflects this intention: individual; 3. Become a self-sufficient recognizes responsible 4. Become members a fam- public education responsi- involves shared ily, group, work or community, including government, bilities. local communi- State demonstrating community effectiveness in ties, students, parents, employ- and school service; together ees work must to effi- create an Think problems in and solve public system.... coop- cient variety situations in a and of situations eration all necessary involved is as- to life; they will encounter in and achieved, sure that desired outcomes are integrate experiences 6. Connect and and knowledge subject from all new matter remaining statutory provisions they with previously fields what have set out the structural framework which past learning experi- learned build this decentralization making of decision au acquire through ences to new information thority is to occur. provi These various media sources. sions participating groups: instruct all state government, communities, parents, (c) stu Schools shall increase their students’ employees, dents and school as to their dele rate school attendance. gated responsibilities they how to (d) Schools shall reduce their students’ interface with the participating groups. other dropout and rates. retention begin We will with first contributor to (e) physical Schools shall reduce and men- First, process. educational KRS learning. tal health barriers responsibilities 158.6451 addresses the (f) pro- Schools shall be measured on Rose, government. suggested state As portion of students who make a successful accountability these include the funds work, post-secondary transition to edu- obligation ensuring objectives cation, military. learning capacities as to are achieved in all defined, ap- objectives broadly schools of the Commonwealth. As was Each of these propriately recognized by noticeably lacking any procedural require- the General As- sembly, goals. inherently these are best for the interests ments achievement Rather, represented by body composed Assembly delegated a of members the General statewide, local, in- representing developing as well as State Council system terests. to enable the success- measurement (12). (8), shall The tests and twelve eight level occurring on the local the reforms es of 158.6451(1). with na- provide the state designed to be to be ascertained. 158.6451(1). comparisons_ tional report, of its final the submission On exist, the State ceased to Council State reflect responsibilities These goals of the adopted the Board of Education effectively rests that most of education area 158.6451(3). pursuant to KRS State Council to assess the In order statewide level. at the participant the current The State Board is reforms, of the educational overall success repre- program, educational the statewide impera- it is recognized that legislature interests senting government’s state inter- body representing statewide tive that responsibilities. charged with its establishing a accountable be held ests of the State Council’s objectives At the termination can best whereby these existence, Education was Further, recognizes Board of State the statute achieved. “disseminating] to local ac- charged also will be held individual school that each curricu- perfor- and schools a model school districts for its countable to State provided] ap- ... direction lum framework reflective of this structural mance. Also they devel- local districts and schools of KRS 158.6455 are the mandates proach 158.6451(4) curriculum.” KRS oped] their to “establish require the State Board which *5 added). language illustrates (emphasis This determining schools and successful of legislature did not intend the State that the rewards.” Nowhere dispensing appropriate authority the over Board to have absolute absolute statutes indicate do these the local school boards actions of Board. authority and/or rest with the State will that the General councils. It is clear this court does question the before While curriculum Assembly required that a model responsibility that the division of not address provided the local boards and to schools’ levels, the and local the state exists between provide guidance that would school councils continue to this division principles inherent or only, specific not rales to be followed statutory frame- remaining throughout the developing in a curricu- actions to be taken decision concept of decentralized work. The and schools have lum. The local districts to the individ- making ability down continues authority responsibil- and been the and their relation- councils ual local school currículums, ity developing their own not- for the This is ships the local school board. withstanding curric- the content of the model directly will this Court. We question before in only point limitation at this ulum. The that issue now. address goals developing their currículums is that the the General participant to whom The third objec- by the outlined the State Council be is the Assembly delegated responsibility has resulting plan. tives of the board, powers and general whose local school Board responsibilities Other of the State “Each 160.290. are found at KRS duties These di- are directed KRS 158.6453. general have control shall board of education for primarily focus on the need rectives public management of the schools and of of the achievements statewide assessment language of Later KRS 160.290. district.” of the stated institution terms each local is meant clearly identifies what provision objectives. These reflect the need statewide management” includ- by “general control accountability achievement for for statewide management of all ing “control objectives. The statute reads: outlined “ap- property,” public school all funds and Elementary and Sec- Board State superintendent,” point[ment of] responsible for ondary Education shall be employees.” compensation of “fix[ing] the statewide, creating implementing also, Chapman, at 235-6. Id. See assessment primarily performance-based listed from these Conspicuously absent accountability for program to insure school that the District any suggestion powers is goals set achievement of student forth_ setting school responsible for Board is respon- School Board shall also be the dis- schools within testing policy at individual administering an interim sible for Rather, enu- of the duties (4), the nature trict. grades four program to assess student suggests powers delegated merated which shall an en- environment to board education are reflective hance the help students’ achievement and of those with which body a district wide school meet the established Assembly should be concerned. The General (emphasis add- 158.645 158.6451.” Id. reasonably manage- has that determined ed.) delegation authority ment of funds are distributed at dis- to the School Council effectively trict level is most addressed clear. body consisting representatives entire The hiring Superinten- district. of a However, the of that delegated extent dent Schools for the district should be authority language is clouded some within level, managed legisla- at the district so the provision same purposeful been has put responsibility Fixing ture there. ly omitted from the above discussion. We compensation employees within the same provision will address that issue now. locality effectively also most rests at the actually “[t]he reads: school council shall point district wide level. The is clear that have to set school legislature delegated wide district policy_” consistent with district board authority school boards the to handle the 160.345(2)(e) representative matters most relevant to its Board contends that this indicates body, funds, primarily managing property, granted oversight the Board been au- personnel and district wide decisions. thority of the Council’s actions. The Keeping in mind that decentralization of states this is the basis development of school- approval of required Council actions in its making based decision two primary ob- policy. KERA, jectives statutory delegation *6 authority completes to the school councils language Board also raises the of KRS requisite framework. The school councils 160.345(3)(g) which states that the Board’s point are the focal making decision for policy implementing school-based decision individual within schools the district. The making shall provision include a waiver body council’s consists of that members of policy. The suggests district Board further Therefore, representative group only. these provision this only that can mean people charged focusing on issues subject authority is Council to the of the relevant to that school alone. Board. part KRS this 160.345 continues of the framework. The local board of education is Although provisions arguably may these adopt a policy “implement- mandated to place oversight authority appear to absolute [that]_ ing making school-based decision within hands Council actions professional allow[s] the staff members of a boards, give interpreta- we cannot this making school be involved the decision tion to the statute consideration of process they as work to meet educational overall framework of KERA. As we have pursuant established” to KRS 158.645 discussed, primary decentralization is a ob- 160.345(2). 158.6451. The obvious jective of In limiting KERA. Council actions intent here have affecting is to the decisions by requiring approval of all Council the individual schools within the district to actions, no there is further decentralization. by persons made most affected what oc- A closer look at other subsections of KRS school; at curs is what “school- provides insight us with into 160.345 further making” based decision means. Assembly’s intended limits provides The statute the mechanism authority. delegated occur, which this is to the school council. 160.345(4) First, ad- states that “[i]n participating KRS 160.345 reads “[e]ach authority granted to the to the dition school (empha- school shall form a school council.” [by legislature] the local “The council board sis school council shall have policy may grant any to set ... school to the school council other approval flexibility, not to indicate language enable authority permitted by law.”2 This policy over Council authority the Board school council has clearly indicates that the independent development. authori- delegated its own been product ty legislature that is not use of understand the In order to best suggested by the Board. of district for the lan- and the need provisions district language “consistent with district being “consistent with guage about any statutory policy” board does not indicate recognize areas where policy,” those we must Rather, authority. basis for council’s and the school the school board’s among all language consistency ensures authority may overlap and the delegated places ad- schools of the Commonwealth consistency become or need for waiver of the limitations on the actions ministrative an issue. salaries, funding, in areas such as Council au- what the indicate The statutes decisions, consistency personnel where council is. KRS thority of the school authority be an issue and where would 160.345(2)(i) respon- important areas of lists been wide decisions has for these district following: sibility, including the Boards. to the School (1) curriculum, including determination merely that there indicates This develop- and curriculum needs assessment These on what the Council can do. are limits ment; limits, however, legisla- are not result (2) Assignment of all instructional tively delegated approval to the time; staff noninstructional Rather, they are limits Local Boards. (3) classes and Assignment of students to inherently by the General As- were created school; programs within authority to the sembly delegations in its (4) of the of the schedule Determination participating groups the common week, subject begin- day system than the local boards. KERA other day ending of the school ning and times designed participating to ensure that each year as established and school calendar group responsible for that area board; represen- most relevant to body. language requiring consis- tative
tency policy is directed at with district board (6) re- Planning and resolution of issues *7 devising system cooperation of “[t]he where practices; garding instructional ... all involved ... facilitated desired [is so] (7) of disci- implementation and Selection 158.645. outcomes are achieved.” KRS management tech- pline classroom Within this context it is clear to this Court including responsibilities of the stu- niques, for the waiver that these are also the reasons teacher, dent, princi- counselor and parent, 160.345(3)(g). leg- requirement of KRS pal; provided requirement to islature this waiver the school council to ask for a devia- enable 160.345(2)(f) clear di- provides also KRS policy, if it tion from district determines authority of the the intended rection as to of that individual school would best the needs follows: and reads as school council than that de- met in a manner different be funds receiving notification of the After example, For fund- vised the local board. from the local the school divergence available for may require a ing needs determine, board, council shall Or, the school particu- policy. students from district total avail- parameters the within the county may be found to region lar of the of to persons of be funds, the number area able on a different academic need to focus job at the employed in each classification developed by local board ob- than those the may personnel make council provision present is to school. jectives. The waiver shall de- sponsibility...‘‘[t]he school council authority by legislature delegation is of the 2. The language councill shall clearly "[t]he of KRS school seen in the termine. ..and 160.345(2)(c), (f), Respectively, they (g). §§ & determine....” the re- council shall have "[t]he read: school occurring decisions vacancies after while the the council can determine the number school council is shall formed but not persons have of employed to be in each classifica- authority tion, to recommend transfers or compensation cannot determine the dismissals, added.) (emphasis employees. however, again, Once request is a situation may where waiver be 160.345(2)(G) further defines the au- enabling useful in flexibility. thority of the school council as follows: “The school council shall determine which CONCLUSION textbooks, materials, instructional The above examination support of these statutes provided student services shall be partici- convinces this court that each Subject in the school. to available re- pating group sources, in the common school local board allocate shall an has been independent appropriation own to each is ade- sphere of quate responsibility. government State to meet the needs school’s related to is held providing adequate accountable for instructional materials and school-based funding and overall support services, success student as detennined system. common added.) The local boards are school council” responsible for the administrative functions statutory language helpful This in un- allocating funding, managing prop- derstanding the interaction intended between erty, superintendent, appointing fix- the school council and the school board. ing compensation employees. 160.345(2)(G)clearly indicates that it is responsible councils are site for the based to the council determine issues, to, including but not limited determin- textbooks, materials, and student ser- curriculum, ing planning prac- instructional provided particular vices that bewill in that tices, selecting implementing discipline school. board is directed to allo- techniques, determining composition cate funds will enable the school to school, the staff choosing at the text- materials and services the. deter- books and instructional materials. necessary by mined pri- the council. The mary limitation on The areas where these ability the council’s functions unavoid- to ably overlap primarily determine is to acquired funding what be is the avail- where ability question. issues provi- be The waiver resources. The resources that are requirement sion maintaining available con- would determined district sistency policy. prime is a with district are intended example of where to ensure that council policy” “consistent district acts within its avail- provided operative. Further, able resources a needed would become if but ave- request flexibility. nue funding council to believes additional would be necessary, ability request a waiver recognize holding may appear We that this flexibility. enables the needed This is one significantly decrease *8 area by where the Board would be boards, however, Assembly the General necessary, statutorily and it is in based KRS response in created this framework 160.345(3)(g). recognized mismanagement sys- of school 160.345(3)®
KRS
further illustrates this
tems.
incidents that have
Several
reflected
groups.
poorly
interaction
upon
management
sys-
between the two
school
of
statute directs that after
school
tems
before
council
have been
this Court. The rec-
has
received notification of available
ord in
fact that
funds
Rose
evidenced the
board,
from
system
the school
council
common school
suffered
personnel
problems
nepotism,
able to determine the
favorit-
finds nec-
associated
ism,
essary within the school.
funds. See
The limitations on
and misallocation
council, however,
Rose,
recently
are found in
at
Another case
before
KRS
160.290,
Court,
Elementary
Bd.
which reflects the
authori-
State
For
Educ.
(1993),
ty
noted,
previously
Ky.,
of the
As
v.
also
Board.
education to prior its approval of tory language quoted my hereinabove and in policies by view, established the school language plain permit is too council. by result majority. achieved question statute is as follows: reasons, For these I dissent.
The school council shall responsi- have the SPAIN, J., bility joins policy to set dissenting opinion. this consistent with ‘policy district board which shall
an environment to enhance the students’ help
achievement and the school meet the
goals established KRS 158.645 and
158.645(1). added.) (Emphasis statute,
In upon reliance appellant,
Board of Education of County, Boone Ken-
tucky, adopted policy a which required each
school council to submit for its review and Stephen YUSSMAN, Petitioner, A. approval year the council’s objectives, implementation v. plans, and its method of Objecting evaluation. ASSOCIATION, KENTUCKY BAR ; grounds board’s on that it was I Respondent. autonomously, to act sought the council de- No. 93-SC-222-KB. claratory injunctive relief. view, my In language of the statute Supreme Kentucky. Court of grants the district board of education right a 19, Jan. 1995. prior policies. of school council (at majority virtually admits this to be so ORDER 814-15), greater but finds a meaning in the Petitioner, Stephen Yussman, A. ap- has “framework of KERA” which to avoid the plied for reinstatement to the Kentucky Bar plain language of the ap- statute. an Such Association, following resignation from that proach is at accepted odds with the method- period years, association for a of five effec- ology construction it is well 27, February tive in Gateway described Construction Co. v. Wallbaum, 247, (1962): Ky., 356 S.W.2d application Yussman’s for reinstatement way The best in most Kentucky cases to ascertain was filed with the Bar Association such 31, intent or to meaning determine the application March 1993. This has used, statute is to look to been pro- considered accordance with the but no intention must be read into cedure set forth appli- SCR 3.510. The justified statute not originally the language. resigned cant Kentucky from the primary rule is to ascertain the intention Bar Association after was discovered that employed the words in enacting he had mishandled escrow funds in several guess applicant statute and not to Legisla- prac- what the estate matters. The has not ture resignation, completed have intended but ticed law since his did not ex- has (Citations press. requirements necessary omitted. the CLE for rein- statement, expressed and has remorse con- majority gone beyond far cerning the incidents. which necessary to decide this case and analytical an delivered treatise Kentucky on the Ken- The Board of Governors of the tucky tempting Education Reform argument Act. As Bar Association heard oral to con- attempt writing as it is to definitive in cut- sider reinstatement. The Board voted 16 to law, ting-edge areas of we should stick with 0 to make recommendation to reinstate *10 practice issue and decide Upon no more than is neces- Yussman to the of law. con- sary Here, for the case. we must determine of the Board of Governors’ recom- sideration