Kansas Attorney General Opinion 1992-105

ROBERT T. STEPHAN
ATTORNEY GENERAL
July 31, 1992
ATTORNEY GENERAL OPINION NO. 92- 105
Thomas Powell
Counsel for Unified School
District No. 259
2000 Epic Center
301 North Main Street
Wichita, Kansas 67202-4820
Re: Schools--Teachers' Contracts; Professional
Negotiations--Agreements; Ratification; Election;
Amendment
Synopsis: An attempt by a board of education and a
professional employees' organization to ratify
amendments to the contracts of employment of
professional employees without submitting the
amendments to a vote of the professional employees
pursuant to K.S.A. 72-5421 would conflict with the
purposes of professional negotiation recognized by
the legislature. Any provisions of an agreement
conferring such authority upon a board of education
and a professional employees' organization would be
void and unenforceable. Cited herein: K.S.A.
72-5411, as amended by L. 1992, ch. 20, S 1;
K.S.A. 1991 Supp. 72-5412; 72-5413; K.S.A. 72-5414;
72-5421; K.S.A. 1991 Supp. 72-5423; K.S.A. 72-5424;
72-5437, as amended by L. 1992, ch. 20, S 2.
Dear Mr. Powell:
As attorney for unified school district no. 259, you request
our opinion regarding whether a board of education and a

professional employees' organization may ratify amendments to
contracts of employment of professional employees without
submitting the amendments to a vote of the professional
employees. You also ask whether a clause of a contract of
employment permitting a board of education and a professional
employees' organization to ratify amendments to the contracts
would be enforceable.
A school district is an arm of the state existing only as a
creature of the legislature to operate as a political
subdivision of the state. NEA-Wichita v. U.S.D. No. 259,
234 Kan. 512, 517 (1983). A school district has only such
power and authority as is granted by the legislature and its
power to contract, including contracts for employment, is only
such as is conferred either expressly or by necessary
implication. Id. Provisions of a negotiated agreement
which conflict with the purposes of the statutory scheme are
void and unenforceable. Ottawa Education Association v.
U.S.D. No. 290, 233 Kan. 865, 869 (1983); U.S.D. No. 241 v.
Swanson, 11 Kan.App.2d 171, 173 (1986); Miller v. U.S.D.
No. 470, 12 Kan.App.2d 368, 372 (1987), aff'd 242 Kan. 817
(1988).
In order to determine whether a provision of an agreement
permitting ratification by a board of education and a
professional employees' organization of amendments to the
contracts of employment of professional employees is
enforceable, it is necessary to consider state statutes
regarding professional negotiations, located at K.S.A. 72-5413
et seq.
K.S.A. 72-5414 authorizes professional employees "to form,
join or assist professional employees' organizations, to
participate in professional negotiations with boards of
education through representatives of their own choosing for
the purpose of establishing, maintaining, protecting or
improving terms and conditions of professional service." The
professional negotiations are conducted with the goal of
"reach[ing] agreement with respect to the terms and
conditions of professional service." K.S.A. 1991 Supp.
72-5413(g); see Riley County Education Association v.
U.S.D. No. 378, 225 Kan. 385, 390 (1979).
K.S.A. 72-5421 provides in part:
"A board of education and an exclusive
representative selected or designated
under the provisions of this act . . . may

enter into an agreement covering terms and
conditions of professional service. The
agreement becomes binding when ratified by
a majority of the members of the board of
education and a majority of the
professional employees in the applicable
negotiating unit who vote on the question
of ratification of the agreement at an
election conducted by the exclusive
representative if at least a majority of
the professional employees in the
negotiating unit vote. If less than a
majority of the professional employees
vote on the question of ratification the
election is void." (Emphasis added.)
K.S.A. 1991 Supp. 72-5423 provides that once the professional
employees' organization is recognized, the board of education
and the organization are obligated to "enter into professional
negotiations on request of either party at any time during the
school year prior to issuance or renewal of the annual
teachers' contracts. Notices to negotiate on new items or
to amend an existing contract must be filed on or before
February 1 in any school year by either party. . . ."
(Emphasis added.) Any agreement achieved may be adopted by
reference and made a part of the employment contracts between
the professional employees and the board of education for a
period not to exceed three years.
K.S.A. 72-5424 permits a board of education and a professional
employees' organization to include in the agreement
"procedures for final and binding arbitration of such disputes
as may arise involving the interpretation, application or
violation of such agreement."
It is clear after review of the above statutes that the
legislature intended for professional negotiations to be
conducted after the proper notices have been filed prior to
February 1 by the board of education and the professional
employees' organization. The board and the organization are
to negotiate to reach an agreement which will be submitted to
the members of the board and the professional employees for
approval.
"[A]greement by the negotiating teams is
not enough. Board ratification is
required on the one hand, which presumably
will be recommended in good faith by the

Board's team and considered in good faith
by the Board. On the other, ratification
is required by a majority of the entire
negotiating unit, not just of the
negotiating organization. Again, a good
faith recommendation of ratification by
the organization's negotiating team is to
be expected. Only when so ratified does
an agreement become binding." National
Education Association v. Board of
Education, 212 Kan. 741, 749 (1973)
(emphasis added).
Pursuant to K.S.A. 1991 Supp. 72-5423, this procedure is to be
followed in the negotiation of new items or to amend existing
contracts. Upon ratification by the members of the board of
education and the negotiating unit, the new items or
amendments become part of the contracts of employment of
professional employees. "All contracts shall be binding on
both the teacher and board of education of the school district
until the teacher has been legally discharged from such
teacher's teaching position or until released by the board of
education from such contract." K.S.A. 1991 Supp. 72-5412.
While K.S.A. 72-5411, as amended by L. 1992, ch. 20, § 1,
and K.S.A. 72-5437, as amended by L. 1992, ch. 20, S 2,
provide that "[t]erms of a contract may be changed at any
time by mutual consent of both a teacher and the board of
education of a school district," no authority to bind
professional employees to amendment of their contracts of
employment is conferred upon the professional employees'
organization. Therefore, an attempt by a board of education
and a professional employees' organization to ratify
amendments to the contracts of employment of professional
employees without submitting the amendments to a vote of the
professional employees pursuant to K.S.A. 72-5421 would
conflict with the purposes of professional negotiation
recognized by the legislature. Any provisions of an agreement
conferring such authority upon a board of education and a
professional employees' organization would be void and
unenforceable.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Richard D. Smith
Assistant Attorney General
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