Request By:
Mr. Harold P. Hamilton
Assistant State Treasurer
Office of State Treasurer
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A question posed to the State Treasury Department made you aware of the need for an opinion from this office. KRS 427.140 states: "No employer may discharge any employe by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness. " (Emphasis added).
You say that this negative statement has appeared open to the interpretation that an employer may discharge an employee for being subjected to garnishment for more than one indebtedness.
Your specific question is whether the state may discharge any employee where the employee is subjected to garnishment for more than one indebtedness.
The Federal Consumer Credit Protection Act contains the identical provision. See 15 USCA § 1674(a).
In Stewart v. Travelers Corp. (USCA -9, 1974) 503 F.2d 108, the court, in considering the primary purpose of this legislation, wrote this at page 113:
". . . a primary purpose of § 1674(a) is to protect against the hardships and disruptions resulting from employee discharges due to but one garnishment of wages."
In a footnote (#14) the court said that "§ 1674 manifests congressional concern over the unscrupulous and unfair use of wage garnishments by creditors."
The court wrote in Cheatham v. Virginia Alcoholic Beverage Control Board (USCA -4, 1974) 501 F.2d 1346 at p. 1347, that such legislation protects an employee from discharge where his earnings have been garnished "for any one indebtedness. " But the court said that "It does not protect him where there have been, . . ., multiple garnishments based on more than a single indebtedness. "
It is apparent that the key phrase in KRS 427.140 is "one indebtedness. " Therefore, this statute protects a state employee where he has been subjected to garnishment for any one indebtedness. The ordinary meaning of the phrase "one indebtedness" is simply "one specific indebtedness. " Thus, as was held in Cheatham, above, our statute does not protect a state employee where he has been garnished by way of multiple garnishments based on more than a single indebtedness.
101 KAR 1:120 § 3, relating to dismissals, provides that the appointing authority may remove any employee with status only for cause after furnishing the employee and the commissioner with a written statement of the specific reasons for dismissal. Such reasons shall be specific as to the statutory and/or rule violation, etc. The penalty for violation of KRS 427.140 is a fine of not more than $1,000 or imprisonment for not more than a year, or both. KRS 427.990.
The court, in Johnson v. Pike Corp. of America, 332 F.Supp. 490, 496 (C.D. Cal. 1971), stated: "Discharging an employee solely because his wages have been garnished once or several times benefits no one; the employer loses an otherwise capable employee and must expend considerable time and effort to train a replacement; the employee loses his source of income and may become dependent upon unemployment compensation or welfare; and the creditor is less likely to recover his claim."
Even though we are mindful of the economic implications, it is our opinion that KRS 427.140, by strong implication, authorizes the discharge or dismissal of a state employee where such employee is subject to garnishment for more than one indebtedness. A statute need not expressly state what is necessarily implied. National Surety Co. v. Commonwealth Ex Rel. Coleman, 253 Ky. 607, 69 S.W.2d 1007 (1934) 1009.
We want to make it clear that under the statute the number of garnishments, whether one or more, is not significant. The critical factor is whether the garnishment involves one indebtedness or more than one indebtedness.