Request By:
Phil Taliaferro, Chairman
Kentucky Personnel Board
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; Martin Glazer, Assistant Attorney General
You seek the opinion of this office as to whether a merit system employee may escape the statutory restrictions on political activity set out in KRS 18.310 by going on leave without pay during the period of such political activity.
By other correspondence not made part of your request, we are aware of assertions that such person is not an "employe" as defined in KRS 18.110 as "a person regularly appointed to a position in the state service for which he is compensated on a full-time or part-time basis."
Apparently, it is contended that while on leave without pay he is not an employee because he is not compensated at the time of the political activity.
We do not believe the term is so narrowly intended. In our view, the term "employe" as used in KRS 18.110(10) is meant to cover any person who receives compensation at any time for his services as distinguished from a person who is strictly a non-paid volunteer. Merely taking an unpaid leave of absence does not change his status as an "employe," if the job calls for compensation to be paid therefor. Either he is or is not an employee. He cannot be an employee one day and a non-employee the next, because he received no compensation for a particular day.
In OAG 73-745, we advised that a merit system employee may not be a candidate for a non-partisan city office where the office provides a compensation even when the prospective office-holder chooses not to accept the compensation or offers to return it. Of like effect was our OAG 75-90.
Besides, KRS 18.310(3) provides in part: "No employe in the classified service shall" perform certain forbidden acts, [emphasis supplied] and subsection 4 provides in part:
"No employe in the classified service shall . . . take part in the management or affairs of any political party or in any political campaign. . . ." [Emphasis supplied. ]
If the person works in a job that is a covered position, that provides compensation for that position at any time, then he is an "employe in the classified service. " His leave of absence does not change his status as an "employe in the classified service. " He has the right to return to the job, his employer must keep it open for him. When he returns [assuming he has completed his probationary period] and even while on leave he has the right to appeal any disciplinary action; he retains his status for retirement; and for limited periods earns additional sick and annual leave.
In short, he retains all the emoluments and perquisites associated with the position. His employment status has not changed. He is an employee who receives no pay for the period when he is on leave without pay, but he is still an employee, nevertheless, and he cannot engage in those forbidden activities while he has the status of an employee.
Any other interpretation would render the statute an absurdity and would provide a loophole for a ten-ton truck.
The Kentucky General Assembly gave merit system employees "status." They cannot be discharged without cause and they have the right to a hearing thereon. In return, the employee gave up certain rights which he would have had in the private sector. But, then, again, in the private sector, the employee can be discharged at will, usually without any recourse.
The merit system employee cannot escape the restrictions against political activity by taking an unpaid leave of absence. To participate therein, he must first resign. Otherwise, he is subject to penalization, dismissal, and even criminal penalties.