Kansas Attorney General Opinion 1992-044

ROBERT T. STEPHAN
ATTORNEY GENERAL April 2, 1992
ATTORNEY GENERAL OPINION NO. 92- 44
The Honorable Rick Bowden
State Representative, Ninety-Third District
State Capitol, Room 281-W
Topeka, Kansas 66612
Re: Schools--Teachers' Contracts; Due Process
Procedure; Contract Termination--Testimony,
Recording and Transcribing; Allocation of Costs;
1992 Senate Bill No. 109; Constitutionality
Synopsis: The amendment proposed in 1992 Senate Bill No. 109,
§ 1 requires the tenured teacher to pay the costs
of transcription if the tenured teacher requests a
transcript, or one-half of the costs if both
parties request a transcript. However, the state
has established no compelling interest in recouping
the costs of procedural due process, and cannot
impose a significant and unjustified open-ended
penalty on the exercise of the right of due
process. The state therefore cannot penalize the
tenured teacher for exercising the tenured
teacher's due process rights by requiring the
tenured teacher to pay the costs of transcription
as set forth in 1992 Senate Bill No. 109, § 1.
Cited herein: K.S.A. 1991 Supp. 60-2101; K.S.A.
72-5436; K.S.A. 1991 Supp. 72-5438; 72-5439; 72-
5440; 72-5443; 1992 Senate Bill No. 109; U.S.
Const., Amend. XIV.

Dear Representative Bowden:
As representative for the ninety-third district, you request
our opinion regarding whether an amendment proposed in 1992
Senate Bill No. 109 will withstand constitutional scrutiny.
The amendment regards the allocation of costs of the due
process hearing required upon termination or nonrenewal of a
tenured teacher's contract. The amendment has been proposed
as a result of court decisions in Ames v. Board of
Education, U.S.D. No. 264, No. 91-1278-K (D.Kan. March 6,
1992) and Gunkel v. Board of Education, U.S.D. No. 252,
No. 90-C-97 (Lyon County Dist. Ct. May 21, 1991).
K.S.A. 72-5436 et seq. set forth the procedure for
conducting the due process hearing that must be accorded a
tenured teacher whose contract is terminated or nonrenewed.
Pursuant to the due process procedure, the teacher must
receive notice of the reasons for nonrenewal, be allowed an
opportunity to be heard prior to termination, and select a
member of the hearing committee. K.S.A. 1991 Supp. 72-5438.
In addition, the teacher has the right to be represented by
counsel and to present and cross-examine witnesses. K.S.A.
1991 Supp. 72-5439. K.S.A. 1991 Supp. 72-5440 allows a
teacher to have witnesses subpoenaed by the hearing
committee. The decision of the three-member hearing committee
must be adopted by the board of education. K.S.A. 1991 Supp.
72-5443. The decision of the board of education may be
appealed to the district court id., which may receive new
evidence and reverse, vacate, or modify the board's decision.
K.S.A. 1991 Supp. 60-2101.
K.S.A. 1991 Stipp. 72-5440 provides for allocation of the costs
of the due process hearing. Each party is required to bear
the costs of each party's witnesses, except that the fees
payable to subpoenaed witnesses will be borne equally by the
parties. Each party is required to bear the costs for the
services of the member of the hearing committee designated by
that party. The costs for the services of the third member of
the hearing committee are to be borne equally by the parties.
Testimony at the hearing may be recorded and transcribed at
the request of either party. The costs of the recording and
transcript would apparently be divided between the parties as
"[a]ll costs of a hearing which are not specifically
allocated in this section shall be borne equally by the
parties." K.S.A. 1991 Supp. 72-5440(d); Gunkel, No.
90-C-97. However, see Ames, No. 91-1278-K, at 11 ("The

costs for any such transcription shall be borne by the board.
K.S.A. 72 - 5440(c).)
In both Ames and Gunkel, it was determined by the
respective courts that such cost allocation imposes an
impermissible burden on the right of the teacher to due
process. The courts, after acknowledging the similarity
between K.S.A. 1991 Supp. 72-5436 et seq. and the due
process procedure accorded teachers in Oklahoma, relied on
Rankin v. Independent School District No. 1-3, 876 F.2d
838 (10th Cir. 1989) and determined that, as in Rankin,
the state provided no way to exercise due process rights other
than in a penalizing manner. "This penalty, the court
reasoned, imposed a chilling effect on the exercise of due
process because the tenured teacher's potential liability for
costs was unrestricted and partly the result of factors
outside his control." Ames, No. 91-1278-K, at 13. The
court held that because recoupment by the state of the costs
of the due process hearing does not fulfill a compelling state
interest, the cost-allocation requirement is unconstitutional.
In response, the legislature has proposed in 1992 Senate Bill
No. 109 an amendment to K.S.A. 1991 Supp. 72-5440. Under 1992
Senate Bill No. 109, each party would remain responsible for
the costs of each party's witnesses, except that the costs of
subpoenaed witnesses would be borne entirely by the board of
education. The board of education would also bear the costs
of the services of the hearing officer and the certified
shorthand reporter. (The hearing committee is replaced with a
qualified hearing officer. 1992 Senate Bill No. 109, § 2.)
The costs of a transcript are borne by the party requesting
transcription, except that "[i]f both parties jointly request
that the transcript be transcribed at the hearing-level, the
parties shall each pay one-half of the cost of
transcription." Each party is responsible for the payment of
its own attorney's fees. Any costs of the hearing which have
not been specifically allocated under the statute are to be
borne by the board of education.
Pursuant to the fourteenth amendment of the constitution of
the United States, no person may be deprived of life, liberty,
or property without due process of law. A tenured teacher
holds a property right in continued employment, which is
protected by the due process clause of the fourteenth
amendment. Unruh v. U.S.D. No. 300, 245 Kan. 35, 41
(1989); Ames, No. 91 - 1278-K, at 6. An essential principle
of due process is that a deprivation of life, liberty, or
property be proceeded by notice and opportunity for hearing

appropriate to the nature of the case. Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487,
1493, 84 L.Ed.2d 494 (1985); Ames, No. 91-1278-K, at 6.
"Under Loudermill the Supreme Court
held that before a 'tenured public
employee' can be discharged, he 'is
entitled to oral or written notice of the
charges against him, an explanation of the
employer's evidence, and an opportunity to
present his side of the story. To require
more than this prior to termination
would intrude to an unwarranted extent on
the government's interest in quickly
removing an unsatisfactory employee.' 470
U.S. at 546, 105 S.Ct. at 1495 (citations
omitted)." Derstein v. State of
Kansas, 915 F.2d 1410, 1413 (10th Cir.
1990), cert. denied, Derstein v.
Benson, U.S. , 111 S.Ct.
1391 (1991) (Emphasis added).
The procedures mandated by Kansas law clearly meet the
requirements of the due process clause. Pitts v. Board of
Education of U.S.D. 305, Salina, Kansas, 869 F.2d 555, 557
(10th Cir. 1989); See Ames, No. 91-1278-K, at 8. In fact,
K.S.A. 72-5436 et seq. confers due process above and
beyond that required under the fourteenth amendment. However,
"what is due process of law in a state is regulated by the law
of the state. . . ." 16A Am.Jur.2d Constitutional Law §
815 (1979). The state may not, through allocation of costs,
place a penalty on the exercise of any procedural due process
rights. As acknowledged by Judge Patrick Kelly in Ames:
"[T]he state argues that tenured teachers
are afforded extra procedural protections
under the state law, in excess of the
minimal constitutional requirements, and
therefore should fairly bear a portion of
the financial burden. The identical
cost-recoupment argument was presented and
rejected in Rankin. In failing to
renew [the tenured teacher's ] employment
contract, the state has created the need
for a due process hearing. Thus, the
state cannot penalize [the tenured
teacher] for exercising a right which it

is constitutionally required to give
him." Ames, No. 91-1278-K, at 14.
It is the state's affirmative obligation to furnish the
tenured teacher a due process hearing when action adverse to
the teacher's liberty or property interests are taken.
Rankin, 876 F.2d at 840.
The amendment proposed in 1992 Senate Bill No. 109, § 1
requires the tenured teacher to pay the costs of transcription
if the tenured teacher requests a transcript, or one-half the
costs if both parties request a transcript. However, the
state has established no compelling interest for recouping the
costs of procedural due process and cannot impose a
significant and unjustified open-ended penalty on the exercise
of the right of due process. The state therefore cannot
penalize the tenured teacher for exercising the tenured
teacher's due process rights by requiring the tenured teacher
to pay the costs of transcription as set forth in 1992 Senate
Bill No. 109, § 1.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Richard D. Smith
Assistant Attorney General
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