This story has been updated with comment from Wayne Lewis.
Attorney General Andy Beshear told Insider Louisville that his office would become “very involved” if Education Commissioner Wayne Lewis tried to discipline teachers behind recent sickouts.
Beshear added that he’s preparing to challenge Lewis’ new role in the educational standards board in the Kentucky Supreme Court next month.
“What I can say right now is that if he tries to directly discipline these teachers, he can expect us to be very involved,” Beshear in an interview Wednesday afternoon.
His comments come as some Jefferson County teachers fear retaliation from Kentucky’s top education official after staging sickouts to protest controversial education bills. After six work stoppages in Kentucky’s largest district, Lewis asked for and received the names of teachers who had called in sick to spark district closures.
Later Wednesday afternoon, Lewis asked districts to change local policies to close a “loophole” allowing teachers to use sick leave to create a quasi-work stoppage.
Citing teachers’ fear of retaliation, the JCPS school board asked Lewis to withdraw his request last week. Lewis refused but said he would not discipline teachers who misused sick leave — if there are no more work stoppages.
He reaffirmed his stance against punishment in his Wednesday memo, adding he will consider “recommending that the labor cabinet issue citations to teachers engaged in illegal work stoppages” if they continue. If found guilty, a labor cabinet citation could cost $100 to $1,000.
Lewis does not have the authority to directly discipline or fire teachers. But a July executive order moved Kentucky’s Education Professional Standards Board, which governs teacher certification and investigates misconduct, under Lewis’ purview. The standards board can suspend or revoke licenses or admonish teachers.
Before the order, EPSB exists as both a board, of which Lewis was a voting member, and an agency. The order abolished the agency and kept the board, moving the agency’s work to KDE and making Lewis the nonvoting executive secretary of the board.
Lewis said it is “incredibly insulting” to insinuate he would dictate misconduct decisions to the board, which is comprised of educators and chaired by a teacher. People are “making it out to be something it’s not,” he added.
Anyone can make a recommendation to the board against an educator, Lewis said, not just the commissioner. Now, he no longer has a vote in those decisions, he said.
Among suggestions for changes to local policy, Lewis said districts could begin disciplining teachers for lying about sick leave or send them to EPSB.
Beshear is slated to challenge the executive order in the Kentucky Supreme Court in early April.
Gov. Matt Bevin initially tried to reorganize education boards, or abolish and recreate them, in a similar 2017 executive order. Executive orders need to be ratified in the following legislative session. When last year’s lawmakers didn’t approve the order, it became moot.
Bevin tried again last July. The Senate passed the order this session, but the House hasn’t voted on it yet. It could pass on Thursday, the final day of the session.
A spokeswoman for Bevin did not respond to a request for comment.
Beshear argues Bevin’s orders ignore and attempt to rewrite the law, ultimately giving him free rein. It “violates the very separation of powers,” he said.
Reorganizing or reconstituting boards and councils through executive order overrides the legislative branch, Beshear said. Lawmakers designed boards, including EPSB, to function independently and free from political influence. Some are operated by a director who does not report to the governor or use staggered terms so to not be dominated by one governor’s appointees.
A trial court previously ruled against his argument, saying that the legislature delegated the power to rewrite law to the governor.
“What we’re seeing right now with the threats that Wayne Lewis is making against teachers is the result of these illegal executive orders,” Beshear said. “Wayne Lewis, as the commissioner of education, shouldn’t have any authority to discipline teachers. The only way he’s in a position to do that is because the governor rewrote the law to make Wayne Lewis the head of the EPSB.”
Beshear, who is running for governor, says the legal fight began long before this year’s wave of sickouts. But it is suddenly topical, and shows why the standards board’s independence is important, he said.
“This is a teacher’s livelihood,” Beshear said of the standards board’s impact. “It is wrong to put it under control of a governor, especially this governor, who seems to operate out of spite.”
Since districts didn’t collect documentation for those who tried to take sick leave before closures, it could be difficult to distinguish who misused a sick day and who legitimately was ill regardless of the court ruling.
Jefferson County teachers union president Brent McKim said Wednesday morning that if a teacher requested multiple days off in the sickout timeframe then are documented in other “public activities,” the standards board could prove misuse of sick leave. Lewis said earlier this month that he was not requesting visitor logs from the Capitol — one potential source of corroboration.
Misusing sick days is considered conduct unbecoming of a teacher, McKim said and can be grounds for discipline from the standards board.
In its one major change since July, the standards board waived a requirement that teachers obtain Rank II — typically through earning a master’s degree — in the first 10 years of teaching last August. KDE said the move would give districts more flexibility to hire and retain teachers in battling a teacher shortage.
Beshear’s running mate and high school administrator Jacqueline Coleman opposed the change, saying Kentucky was “moving in the wrong direction.”
“Another board intended to be independent from politics has been swept under the control of Bevin’s political appointees tasked with dismantling public education,” Coleman tweeted in August.