Opinion No. 43-73
Topics:
SCHOOLS.
TEACHERS.
RULES & REGULATIONS.
Summary conclusion
A board of education may not require a teacher to have been employed two years or more by another school district within ten years immediately prior to employment by the board of education as a condition for a waiver of one year toward tenure of a probationary period for a probationary teacher.
Contents of opinion
November 15, 1973
Honorable Donald L. Manford
Missouri Senate, 8th District
9409 Oakland
Kansas City, Missouri 64138
Dear Senator Manford:
You have requested an opinion of the Attorney General whether:
"A rule or regulation by a board of education be considered reasonable if it required that experience in another school district must be within ten years immediately prior to employment to enable the board of education to waive one year toward tenure of a probationary period for a probationary teacher?"
Section 168.104(5), RSMo 1969, (Teacher Tenure Act) provides:
"'Probationary teacher', any teacher as herein defined who has been employed full time in the same school district for five successive years or less. A teacher recognized as a full-time teacher by a public school retirement system shall be recognized as a full-time teacher under sections 168.102; to 168.130. In the case of any probationary teacher who has been employed in any other school system as a full-time teacher for two or more years, the board of education shall waive one year of his probationary period;" (Emphasis added)
This section of the Teacher Tenure Act has previously been construed in an opinion of the Attorney General (Opinion No. 233, Holliday, 10-24-72 (copy enclosed)). In that opinion this office determined that "the board of education, under Section 168.104(5), RSMo 1969, must waive one year of a teacher's probationary period if he has been employed in any other school system as a full-time teacher for two or more years." We reaffirm our position set forth in that opinion. The statutory language is mandatory and the power of the board of education to make such a rule must be found prior to a determination of the reasonableness of the rule. We find no such power. Accordingly, Section 168.045(5), RSMo, does not permit a school district to impose a more stringent role or regulation upon a teacher in the determination of his eligibility for classification as a permanent teacher. See Wright v. Board of Education of St. Louis, 246 S.W. 43 (Mo. 1922).
CONCLUSION
It is the opinion of this office that a board of education may not require a teacher to have been employed two years or more by another school district within ten years immediately prior to employment by the board of education as a condition for a waiver of one year toward tenure of a probationary period for a probationary teacher.
The foregoing opinion, which I hereby approve, was prepared by my assistant, Donald R. Bird.
Very truly yours,
John C. Danforth
Attorney General