Request By:
Mr. Samuel R. McCracken
Simpson County Attorney
P.O. Box 524
Franklin, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask whether a fee office, such as the sheriff's office, may fund, in whole or in part, hospitalization insurance for regular deputies out of excess fees.
Since excess fees ultimately go to the county, we are dealing with county money. See Funk v. Milliken, Ky., 317 S.W.2d 499 (1958). KRS 79.080(2) expressly provides that cities or counties are authorized to establish plans "for the payment of retirement, disability, health maintenance organization coverage, or hospitalization benefits to their employes . . . Such a plan may require employes to pay a percentage of their salaries into a fund from which coverage or benefits are paid, or the city, county, urban-county government or agency may pay out of its own funds the entire cost of the coverage or benefits." (Emphasis added).
Deputies of constitutional officers are also "officers" in the technical sense. Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947) 817. KRS 79.080 speaks only of "county employees. "
It is our opinion that KRS 79.080 does not authorize the payment of premiums out of excess fees of constitutional officers for such insurance covering deputies of constitutional fee officers. We believe the legislature intended to cover only county "employees" hired under the aegis of fiscal court under KRS 67.080, 67.083, and 67.710(7).
The Court of Appeals of Kentucky, in Turner v. Cole, Ky. App., 559 S.W.2d 170 (1977) 173, in interpreting a city ordinance creating a civil service system for city employees of the fire and police departments, held that, where reference was made throughout the ordinance to "employees" and never to "officers", the chief of police did not come under the ordinance. The court said that the city council, in enacting the ordinance, could have included the chief of police by using the phrase "employees or officers", but did not do so. That is the case here. The legislature could have included "officers", constitutional and others, but it did not do so. The statute [KRS 79.080] refers only to "county employees. "
Compare KRS 78.510(6), defining "employe" as "every regular full-time appointed or elective officer or employe of a participating county." (Emphasis added). That statute relates to the county employes retirement system. But it illustrates that the General Assembly has legislatively distinguished between a county officer and a county employee. See also KRS 67.180 and 67.185, providing explicitly for the county's taking out motor vehicle and compensation insurance covering "employes of the county", and Monroe County v. Rouse, Ky., 274 S.W.2d 477 (1955) 479, wherein the court refers to such insurance coverage to protect the public and the county's "employees". In Fields v. Twin City Drive-In, Ky., 534 S.W.2d 457 (1976), in interpreting a statutory definition of "employes", in connection with workmen's compensation coverage, and in holding that an employe must be a person under an employer-employe relationship, wrote this about the term "employe": "A sow's ear is a sow's ear, regardless of what it is called."
Here there is no way that the term "county employee" can be stretched into something other than a county employe hired under the authority of fiscal court. Any opinion of this office in conflict with this opinion is hereby modified accordingly.