Kansas Attorney General Opinion 1992-109

ROBERT T. STEPHAN
ATTORNEY GENERAL
August 17, 1992
ATTORNEY GENERAL OPINION NO. 92-109
The Honorable Doug Walker
State Senator, Twelfth District
212 First
Osawatomie, Kansas 66064
Re: Schools--Teachers' Contracts; Supplemental
Contracts--Supplemental Contracts of Employment
Authorized; Continuation of Teachers' Contracts;
Primary Contracts; Part-Time Employment
Synopsis: The hiring practices of Allen county community
college acknowledge that once a-teacher has been
employed for the time established in K.S.A.
72-5445, as amended by L. 1992, ch. 185, S 7,the
primary contract for 12 hours of teaching is
subject to the teachers' continuing contract law,
K.S.A. 72-5410 et seq., and the teachers' due
process, K.S.A. 72-5436 et seq. Termination of
a supplemental contract regarding coaching duties
does not affect the primary contract of employment
of the teacher as the teacher is permitted to
continue the part-time employment as a teacher.
Under such circumstances, the hiring practices of
Allen county community college do not violate the
teachers' continuing contract law or the teachers'
due process. Cited herein: K.S.A. 1991 Supp.
71-201; K.S.A. 72-5410; 72-5411, as amended by L.
1992, ch. 20, S 1; 72-5412a; K.S.A. 1991 Supp.
72 - 5413; K.S.A. 72-5436; 72-5437, as amended by L.
1992, ch. 20, S 2; 72-5445, as amended by L.
1992, ch. 185, S 7.

Dear Senator Walker:
As senator for the twelfth district, you request our opinion
regarding the legality of certain hiring practices of Allen
county community college. Specifically, you ask whether such
hiring practices violate the teachers' continuing contract
law, K.S.A. 72-5410 et seq.
According to information provided by you, Allen county
community college has instituted a new policy regarding
employment of persons who are to be employed as both a teacher
and a coach. Such persons are offered a primary contract for
12 hours of teaching (15 hours is considered full-time) and a
supplemental contract for coaching duties. If, after
achieving tenure, the person resigns from the coaching duties,
the person is permitted to continue teaching 12 hours, but is
not offered a full-time position. The person is no longer
paid the compensation designated in the supplemental
contract. However, the person does receive compensation based
on 12 hours of teaching.
The board of trustees of a community college is authorized
under K.S.A. 1991 Supp. 71-201 to appoint the appropriate
staff for the community college and to fix and determine the
duties and compensation of the individuals. employed. A board
of trustees is able to enter into both principal or primary
contracts of employment and supplemental contracts of
employment with professional employees. A professional
employee is "any person . . . employed by [the board of
trustees of any community college] in a professional,
educational or instructional capacity, but shall not mean any
such person who is an administrative employee." K.S.A. 1991
Supp. 72-5413.
The principal or primary contract of employment 'of a teacher
is subject to the continuing contract law, K.S.A. 72-5410 et
seq., and the due process procedure set forth in K.S.A.
72-5436 et seq. Under K.S.A. 72-5411, as amended by L.
1992, ch. 20, § 1, and 72-5437, as amended by L. 1992, ch.
20, § 2, the primary contract is deemed to continue in full
force and effect during good behavior and efficient and
competent service rendered by the teacher, and is deemed to
continue for the next succeeding school year unless the proper
notice is provided. Once the teacher has been employed for
the period of time established in K.S.A. 72-5445, as amended
by L. 1992, ch. 185, § 7, the teacher is entitled to a due
process hearing regarding termination or nonrenewal of the

primary contract of employment. The Supreme Court of Kansas
has stated that the purpose of such safeguards "is to protect
competent and worthy instructors . . . against unjust
dismissal of any kind -- political, religious or personal, and
secure for them teaching conditions which will encourage their
growth in the full practice of their profession, unharried
by constant pressure and fear. . . ." Million v. Board of
Education, 181 Kan. 230, 234 (1957). See Ottawa Education
Association v. U.S.D. No. 290, 233 Kan. 865, 869 (1983);
Butler v. U.S.D. No. 440, 244 Kan. 458, 468 (1989). The
safeguards of K.S.A. 72-5436 et seq. are available to a
teacher who is employed on a part-time basis as well as one
employed full-time. Schmidt v. U.S.D. No. 497, 231 Kan.
267, 269 (1982).
However, the safeguards offered by K.S.A. 72-5436 et seq.
are not applicable to those duties covered by a supplemental
contract. A supplemental contract is defined as a contract
for employment duties "other than those services covered in
the principal or primary contract of employment of the
professional employee and shall include, but not be limited
to, such services as coaching, supervising, directing and
assisting extracurricular activities, chaperoning,
ticket-taking, lunchroom supervision, and other similar and
related activities." K.S.A. 72-5412a; K.S.A. 1991 Supp.
72-5413(o). Supplemental contracts are expressly exempt under
K.S.A. 72-5412a from "[t]he provisions of article 54 of
chapter 72 of Kansas Statutes Annotated which relate to the
continuation of teacher contracts and to the due process
procedure upon termination or nonrenewal of a teacher's
contract. . . ." In Hachiya v. U.S.D. No. 307, 242 Kan.
572 (1988) the Supreme Court of Kansas determined that the
provisions of K.S.A. 72-5412a are mandatory and, therefore,
coaching duties cannot be covered by a primary contract of
employment. Id. at 576-77. As a school district cannot
require a teacher to perform supplemental duties as part of
his primary contract, nor can a teacher demand that he be
assigned supplemental duties as part of his primary contract.
Butler, 244 Kan. at 468-69. A teacher has no enforceable
interest in the yearly continuation of a supplemental contract
of employment regarding coaching duties.
Two cases are cited as authority that the hiring practices of
Allen county community college are illegal. These cases are
Hachiya, supra and Swager v. Board of Education,
U.S.D. No. 412, 9 Kan.App.2d 648 (1984). However, these
cases are distinguishable from the situation at hand.

In Swager, a board of education and a tenured teacher
entered into an agreement which provided the teacher would
teach high school math and perform the duties of head coach
for basketball and assistant coach for football. The teacher
received additional remuneration for the coaching duties.
Upon receipt of the teacher's resignation from the coaching
duties, the board of education deemed the resignation to be a
resignation from all duties with the school district. The
Kansas Court of Appeals determined that the provisions of
K.S.A. 72-5412a are mandatory and that duties which must be
the subject of a supplemental contract cannot be included in
the primary contract of employment. Therefore, despite the
fact that the teacher had executed but a single instrument,
the single written contract memorialized a primary contract to
act as a math teacher, a supplement contract to act as head
basketball coach, and a supplemental contract to act as
assistant football coach. Resignation from either or both of
the supplemental contracts cannot affect the continuation of
the primary contract.
In Hachiya, two tenured teachers were offered reduced
primary contracts after the teachers resigned from seventh and
eighth grade coaching duties. The duties were performed
during the school day rather than after school. It is unclear
as to whether the teachers received additional compensation
for the supplemental duties. Acknowledging the analysis of
the court of appeals in Swager and U.S.D. No. 241 v.
Swanson, 11 Kan.App.2d 171 (1986), the Kansas Supreme Court
determined that the provisions of K.S.A. 72-5412a are
mandatory, and coaching duties may not be included within the
primary contract of employment. Therefore, teachers may
resign a supplemental contract without imperiling their
primary contracts of employment. The court determined that
the mandatory language of K.S.A. 72-5412a does not contain an
exception for coaching activities which occur during the
school day. As the two teachers in Hachiva were full-time
teachers pursuant to their primary contracts of employment,
those contracts could not be reduced upon resignation by the
teachers of supplemental duties previously performed by them.
The facts in Swager and Hachiva differ from the facts
regarding the hiring practices of Allen county community
college. In both cases, the tenured teachers had entered into
full-time positions pursuant to their primary contracts of
employment, and also performed supplemental duties. Upon
resignation from the supplemental duties, the primary
contracts as well as the supplemental contracts were reduced
or terminated, resulting in violation of the teachers'

continuing contract law, K.S.A. 72-5410 et seq., and the
teachers' due process, K.S.A. 72-5436 et seq.
However, under the hiring practices of Allen county community
college, a teacher who is expected to perform coaching duties
is offered a primary contract for 12 hours of teaching. A
supplemental contract regarding the coaching duties is also
extended. Allen county community college acknowledges that
once the teacher has been employed for that time established
in K.S.A. 72-5445, as amended by L. 1992, ch. 185, S 7, the
primary contract for 12 hours of teaching is subject to the
teachers' continuing contract law and the teachers' due
process. The supplemental contract may be terminated by
either the board of trustees or the teacher. Termination of
the supplemental contract does not affect the primary contract
of employment of the teacher as the teacher is permitted to
continue the part-time employment as a teacher. Under such
circumstances, the hiring practices of Allen county community
college do not violate the teachers' continuing contract law
or the teachers' due process.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Richard D. Smith
Assistant Attorney General
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