(dissenting).
In my view, the majority opinion is based neither on the law, nor is it supported by the facts. The result is not only harsh, it is cruel. In a long line of cases this court has consistently adhered to the tenets of the teacher tenure act. The majority opinion evinces a radical departure from previous opinions of this court which strictly construed the tenure and retirement act.
Helena Dorr taught four consecutive years in the Boyd County School District. On May 7, 1970, the superintendent prepared an agenda for a board meeting to be held on May 11, 1970. One of the express purposes of that meeting was to employ personnel for the 1970-1971 school year. Attached to the agenda was a certified list of personnel to be employed. Included in the list was a category described as “teachers eligible for continuing contracts.” Under this designation, Helena Dorr and twelve other teachers were listed.
When the board met on May 11, 1970, each of the five board members had the certified list before them. They considered the list of teachers to be those recommended by the superintendent. Some of the members so testified. All the members testified that there was no deviation in the procedure from other years. The only difference was that the superintendent was ill and unable to attend the meeting.
The superintendent recommended Helena Dorr for a continuing contract. This is reflected not only by the evidence of the board members, but also by the records of the May 11, 1970 meeting. The superintendent complied with the statute which provides:
“(1) Teachers eligible for continuing status in any school district . . . (b) . .- . after teaching four years . . . the year of present employment included, the superintendent shall recommend said teacher for a continuing contract, and, if the teacher is employed by the board of education, a written continuing contract shall be issued. . . .” KRS 161.740(1) (b).
Thus, the superintendent complied with the statute; the board did not. The record of the board proceedings of May 11, 1970, Order No. 175, states :
“On motion of Mr. Tackett, seconded by Mr. Baker and carried, the Board employed the certified personnel listed below as recommended by the superintendent with the exception of Helena Dorr and Wilmer C. Browning. Voting yes: Mr. Tackett; Mr. Baker; Mr. Willman, with the exception of Rhonda Cooksey, niece; Mr. Fitzer, with the exception of Doretha May, Sister-in-law; abstaining: Mr. Cooksey. . . .”
The evidence is conclusive that the superintendent at no time directly or indirectly withdrew his recommendation of Helena Dorr. The contrary is indicated by his testimony:
“Q 102. Did you ever withdraw . . . Mrs. Dorr’s name from the list that you gave to the board?
A. Not in the sense that I made the statement that I withdrew their names.
Q 103. Did you ever furnish the board a list in May, 1970, which did not have Mrs. Dorr’s name on it and Mr. Browning’s name on it?
A. They were both included on the list of those eligible for continuing contracts.
Q 105. You didn’t take them off even in the hospital or wherever you were?
A. No, I never did strike out their names from those eligible for continuing contracts.”
*468The fact that Helena Dorr’s name was not withdrawn is buttressed by the official records of the board at a meeting on May 21, 1970. The purpose of that meeting was to reconsider the action of the board at its May 11, 1970 meeting. The superintendent was present. He was eloquent by his silence. According to the evidence, he “made no comment whatsoever.” If he had withdrawn his recommendation, it would have been appropriate for him to have said so.. Helena Dorr’s principal and other school personnel were present and,
“Each school personnel member present at the meeting (May 21, 1970), was asked to make voluntary statements concerning their feelings and observations regarding the teaching performance of Mrs. Dorr. Resulting statements from the school personnel involved were generally favorable.”
Thus, Helena Dorr was recommended by the superintendent. The recommendation was never withdrawn. The board should then have appealed to the state board of education for a review of the action. KRS 160.380. When Helena Dorr was legally recommended by the superintendent, and the recommendation was not withdrawn she acquired a vested right to teach. She was deprived of that right by the illegal action of the board. Once a teacher has been legally recommended and there has been no withdrawal of that recommendation, that teacher has acquired a vested right to teach. Cf. Wisdom’s Adm’r v. Sims, 284 Ky. 258, 144 S.W.2d 232 (1940).
The board made a feeble attempt to comply with KRS 161.750(2). That provision applies only to teachers who are not eligible for continuing contracts. However, if Helena Dorr had been employed under a limited contract, the notice was wholly insufficient. The statute provides that, “any teacher employed under a limited contract and ineligible for a continuing contract shall at the expiration of such limited contract be deemed re-employed . . . unless the employing board shall give such teacher written notice on or before the fifteenth of May of its intention not to reemploy him . . . .” The board did not comply with this requirement. Paul H. Adams, a Federal Coordinator, who called himself “assistant to the superintendent,” wrote a letter to Helena Dorr notifying her of the action of the board at its May 11, 1970 meeting; that she would not be reemployed for the 1970-1971 school year. There is nothing in the record to indicate that any member of the board ever notified Helena Dorr of the board’s action. On the contrary, the board members testified they gave no such notice to Helena Dorr.
I am of the opinion that the trial court was in error in holding that Mrs. Dorr was not entitled to a hearing to challenge the board’s failure to issue her a continuing contract. Since the action of the board deprived her of a vested property right, she was entitled to a hearing to satisfy the procedural requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Property interests are not created by the constitution. They are created and defined from an independent source such as a state law which was violated by the board in this case. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives; reliance that must not be arbitrarily undermined. It is the purpose of the constitutional right to a hearing to provide an opportunity to vindicate those claims. Board of Regents v. Roth, 408 U. S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
“ . . .a state-employed teacher who has a right to re-employment under a state law, arising from either an express or implied contract, has in turn, a right guaranteed by the Fourteenth Amendment to some form of prior administrative or academic hearing on the cause.” Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).
Helena Dorr was not even shown the courtesy of a hearing under KRS 161.790; *469which provides the manner of the termination of a contract of a teacher who has continuing status. There was no evidence that Mrs. Dorr was insubordinate; immoral of character of conduct unbecoming a teacher; that she had physical or mental disability; or that she was inefficient, incompetent, or had neglected her duty. In fact, Mrs. Dorr was afforded no opportunity for any type of hearing. The evidence reveals that she had a Masters’ Degree, and her principal for the four years she taught at the Summit Elementary School gave her a very favorable report at the May 21, 1970 meeting of the board. His report was bolstered by statements of other school personnel.
This court has said:
“It is well established that a governmental body may not deal in a purely arbitrary manner with the compensation or work assignment of its employees.” Snapp v. Deskins, Ky., 450 S.W.2d 246 (1970).
No teacher in any school system should be buffeted by the whim and caprice of either the superintendent or the board. In my view, the majority opinion shakes the very foundation of teacher tenure. Its effect would permit any board of education to deny any teacher who had achieved continuing status the vested right that teacher had attained.
I would reverse the judgment of the trial court with directions to grant summary judgment for Helena Dorr.
Accordingly, I dissent.