David R. Malone

Attorney General of Arkansas — Opinion
January 11, 1990

STEVE CLARK, Attorney General

The Honorable David R. Malone State Senator P.O. Box 1048 Fayetteville, AR 72701

Dear Senator Malone:

This is in response to your request for an opinion on the following questions:

1. Do the provisions of Arkansas Code Annotated 6-17-1502(a)(2) mean that the maximum permissible probationary period is four (4) years, or that the maximum permissible probationary period is one (1) year more than the accumulated years of experience a teacher brings to the hiring district?
2. May the district extend the probationary period on case by case basis or may the district extend the probationary period across the board for every new teacher it hires?

It is my opinion, in response to your first question, that the maximum probationary period is one (1) year more than the accumulated years of experience a teacher brings to the hiring district. This conclusion is based upon an interpretation of A.C.A. 6-17-1502(2)(2), in the absence of case law or other interpretive authority.

Section 6-17-1502(a)(2) states in pertinent part:

A teacher employed in a school district in this state for three (3) years shall be deemed to have completed the probationary period; however, an employing school district may, by a majority vote of its directors, provide for one (1) additional year of probationary status.

It must be initially noted, in construing this provision, that it would lead to an absurdity to contend that nonprobationary status is limited to those with three (3) years of prior service, and no more. In other words, this subsection should not, in my opinion, be read to designate three (3) years as the exclusive period of prior service for which credit will be given.

This being the case, it reasonably follows that the provision under 6-17-1502(a)(2) for one (1) additional year of probationary status is not limited solely to those with three (3) years of employment in another district. (Of course, a prior service of at least three (3) years is clearly required.) Rather, the board of directors may require a probationary period of one (1) year, notwithstanding the fact that the teacher brings more than three (3) years of prior service to the hiring district.

In response to your second question, it must be concluded from the language of 6-17-1502(a)(2) that this decision is to be made on a case by case basis. This conclusion is compelled by the fact that the Code section refers throughout to “a teacher” and “the teacher.” It is also significant to note that the authority to provide for this additional probationary period is extended to the directors of “an employing school district.” This language appears to associate the employing district’s decision to a particular teacher. Extension of the probationary period across the board for every new teacher would, in my opinion, be contrary to this legislative scheme.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.