Request By:
Hon. Robert W. Riley
General Counsel
Department for Human Resources
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Patrick B. Kimberlin, III, Assistant Attorney General
This is in response to your recent letter wherein you request an opinion of this office as to the following:
Whether the state statutes dealing with the Kentucky Employes Retirement System (KERS) and the County Employes Retirement System (CERS) mandate that Comprehensive Employment and Training Act (CETA) participants employed by state or county government be included in the respective public retirement systems?
As you note in your letter, the Federal Department of Labor has recently issued new guidelines as to the use of CETA funds for contributions on behalf of CETA participants to retirement funds. (Field Memorandum 363-77, § 98.25). These guidelines, as in the past, discourage the use of CETA funds as retirement contributions. However, they now provide that if state law requires coverage by the appropriate public retirement system, then that retirement system must meet certain criteria. Thus, the question arises as to whether state law requires mandatory participation of CETA participants in the KERS or CERS who are employes of state or county governments. 1
The query which you have presented this office is a broad and general one. Thus, to some extent our response must be couched in a general vein. It is our belief that a CETA participant who is a county or state employe must participate in the respective public retirement system if he or she falls within the statutory definition which would in fact mandate such participation for any non-CETA county or state employe. For instance, insofar as KERS membership is concerned KRS 61.510(8) has defined a "member" as any employe who is included in the membership of the system or any former employe whose membership has not been terminated under KRS 61.535. Furthermore, the term "employe" has been defined by KRS 61.510(5) as
". . . the members, officers and employes of the general assembly and every regular full-time appointed or elective officer or employe of a participating department, including the department of military affairs. The term shall not, however, include persons engaged as independent contractors, seasonal, emergency, temporary and part-time workers. In case of any doubt, the board shall determine if a person is an employe within the meaning of KRS 61.510 to 61.700;"
Finally, KRS 61.510(21) defines "regular full-time position" with specified exceptions.
Thus, it is our opinion that in a given case a CETA employe of the state (or of county government) may very well fall within the statutory definitions in Chapter 61 necessitating mandatory participation in a public retirement system. On the other hand, there may be occasions where a CETA participant, employed by state or county government, may not fall within the statutory definitions requiring participation in the respective public retirement system. For example, in OAG 75-726 (copy attached) it was our opinion that certain CETA participants employed by the Lexington-Fayette Urban County Government were excluded from participation in the CERS under the particular facts of that case.
In short, these matters must be resolved on a case-by-case basis as to whether participation in a public retirement system is mandatory.
Footnotes
Footnotes
1 Although statutory citations in this opinion are primarily those pertaining to the KERS, the opinion is meant to incorporate similar statutory citations to be found in Chapter 78 of the Kentucky Revised Statutes pertaining to the CERS.