Request By:
Ms. Susan W. Wanat
Corporation Counsel
Department of Law
Lexington-Fayette Urban
County Government
The Municipal Building
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 28 in which you raise the following question:
"Councilwoman Eleanor Leonard has requested that we seek an Attorney General's Opinion as to whether civil service employees or members of the Division of Police and Fire of the Lexington-Fayette Urban County Government may be reinstated to their positions once they have voluntarily resigned. "
In your letter of request you relate that your office has reached the conclusion in previous opinions that there is no authority for civil service employees to be reinstated in their former positions after they have voluntarily resigned under the terms of either Ch. 95 KRS, particularly KRS 95.430, et seq., relating to cities of the second class, or under KRS 67A.210 to KRS 67A.350 relating to urban county government merit systems.
After reviewing the question, we have reached the same conclusion to the effect that in the absence of any specific statutory authorization for the reinstatement of those civil service employees who voluntarily resign, no such authority exists.
It is noted under KRS 67A.300 that reinstatement of such employees may be made where their positions have been abolished but recreated, but only under such circumstances. Referring to McQuillin, Mun. Corps., Vol. 4, § 12.268f, regarding the question of reinstatement following resignation, we find the following statement also cited in an opinion from your department dated July 12, 1977.
"Generally there can be no reinstatement after a voluntary resignation. The resignation cannot be withdrawn, except where such withdrawal and restoration to a reinstatement list are authorized. . . ."
Also, referring to § 12.269f in McQuillin, we find the following statement:
"If an officer resigns he is not entitled to mandamus to compel reinstatement, unless the resignation was involuntary."
Next referring to 15 Am.Jur. 2, Civil Service, § 58, concerning the subject of resignation, we find the following statement:
"Resignation terminates a civil service position. Thus, a civil service act which was enacted for the purpose of creating and protecting the rights of employees affords no benefits to employees who resign their employment; such an employee loses all benefits provided by the act. . . ."
Also, under § 78 it is provided that:
". . . . A civil service employee who has abandoned his position has lost all rights to reinstatement. "
We also wish to add that the principles enunciated in OAG 71-112 would be applicable though this opinion involved the reinstatement of a retired employee.
Under the circumstances and under present legislation, we do not believe that a civil service employee who has voluntarily resigned can be reinstated to his former position.