Opinion No. ( 1992 )

The Honorable Hoye Horn State Representative P.O. Box 64 Foreman, Arkansas 71836-0064

Dear Representative Horn:

This is in response to your request for an opinion on two questions regarding the distribution of "Educational Excellence Trust Funds" by school districts. Your two questions are as follows:

1. When the Educational Excellence Fund is distributed on an equal basis, does the equal distribution become part of the base salary schedule of a school district?

Example: If you are paying a first year teacher $18,000.00 before the equal distribution, and the equal distribution is $2500.00; is the base automatically a total of $20,500.00 for that district?

2. If the equal distribution was voted on by the Board of Education in September, 1991, are the employees' salaries figured from the new salary schedule for the entire school year of 1991-1992?

It is my opinion that the answer to your first question is "yes." The equal distribution amount is actually received by teachers as salary, and for this reason, it must be reflected on the salary schedule, which is to represent the "actual pay practices of the district." A.C.A. § 6-20-319(4)(B) (Cum. Supp. 1991). The first year teacher in your example will actually receive $20,500.00 in salary for the year. This figure is therefore the "base salary" of the district for that year as reflected on the salary schedule. It will be presumed by a court that the legislature had knowledge of this salary schedule provision when it enacted the legislation creating the trust fund. McLeod v. Santa Fe TrailTransp. Co., 205 Ark. 225, 168 S.W.2d 413 (1943). Additionally, these provisions will be read together, if possible, to make them consistent, harmonious and sensible. Epperson v. Estate ofEpperson, 284 Ark. 35, 679 S.W.2d 792 (1984), cert. denied,471 U.S. 1017 (1985). It is therefore my opinion that to this extent, an equal distribution of trust fund monies becomes a part of the base salary schedule of the district.

In response to your second question, it is my opinion that the certified personnel of the district are entitled to the salary figured on the "new salary schedule" for the entire school year of 1991-92. You state that the "Board of Education" voted on the equal distribution in September, 1991. It should be noted initially that no vote is required for an equal distribution of trust fund monies. They are distributed equally unless there is a vote to the contrary. A.C.A. § 6-5-303 (Cum. Supp. 1991). This same section states that "[i]n each fiscal year of the biennium beginning July 1, 1991, the [trust] funds . . . shall be utilized by school districts to provide salary increases. . . ." In my opinion, this language contemplates that the funds will be used to provide salary increases to teachers for each of the fiscal years 1991-92 and 1992-93, and that the certified personnel will receive such increases over the entire course of these years.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh