Request By:
Roy V. Thurman, Director
Division of Occupations and Professions
Department of Finance
P.O. Box 456
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You have requested an opinion as to an interpretation of KRS 18.370 and KRS 335.060.
You point out that there are board members receiving per diem compensation as authorized by a board's statute, while also being employed by a state university on a full-time basis. A board member has questioned the seemingly "double compensation."
You ask:
"1. Would such a board member be considered a State employee for purposes of satisfying the prohibitive statute mentioned above?
"2. If such a board member would not be considered a State employee and thereby entitled to per diem compensation, would the fact that such employee receiving dual compensation, while attending to board business be found contrary to any law?"
You pose the following hypothetical situation:
"An employee of Kentucky State University is appointed to the Board of Social Work. The Board meets on a regular school day at 1:00 p.m. The member is allowed to attend the board meeting without taking leave from the university. He receives his usual wages supplemented by per diem compensation from the board."
The two statutes cited are as follows. KRS 335.060 provides:
"The members of the board [State Board of Examiners of Social Work of Kentucky], except the secretary, shall receive per diem compensation to be established by the secretary of the executive department for finance and administration. This compensation shall not exceed fifty dollars ($50.00) per day. Members may be reimbursed for their reasonable necessary expenses incurred in the performance of their duties. Reimbursement shall not be made if available funds are insufficient for this purpose. If the board decides to compensate the secretary, it shall, in its discretion, fix his compensation."
KRS 18.370 provides:
"No state officer or employe who is required by statute or regulation to serve on any board, commission or other body in an official capacity shall receive a per diem salary for the attendance of meetings or performance of services." (Emphasis supplied.)
This latter statute, in our view, is limited to those persons who serve on a board ex officio. For example, the Board of Trustees of the Teachers Retirement System include the Superintendent of Public Instruction and the State Treasurer as ex officio members.
Likewise, the Kentucky Employes Retirement System's Board of Trustees includes the Commissioner of Personnel (KRS 61.645).
These officials might designate an assistant or one of their employees to sit for them. So, in our view, 18.370 would prevent the officer or his designee from receiving both the per diem and his salary for the day or period when he performed board duties.
However, in the hypothetical situation that you gave involving the State Board of Examiners of Social Work, created by KRS 335.050, the membership contains no ex officio member. No officer of state government by reason of his office is appointed to the board. Two members are social workers with five years experience, two with two years experience, two members who are engaged in independent practice, and one member who is a citizen-at-large, not engaged in social work (consumer member). There is no requirement that a board member be the director or named officer of an agency of state government.
If the appointed member in such instance happens to be a state employee or officer, it is happenstance. It is not required by statute or regulation.
That does not mean, however, that he may engage in "double dipping" in the state treasury and receive two salaries, or a salary and a per diem.
If a state social worker employee of the Department for Human Resources is appointed to the board created by KRS 335.050, he should be paid either his regular salary on that day or his per diem, while serving on the board, but not both.
If his employer determines that his work on the board is consistent with his general duties as a social worker or furthers the activities of the department for which he usually works, it may continue his regular salary, and request reimbursement from the board for the loss of his services by interaccounting procedures between departments, in the same manner that an employee of one agency is placed on temporary assignment with another agency.
However, if his job in one agency has no relationship to his membership on a board, he should be placed on leave from his regular position and for the day of service with the board receive his board per diem.
In that manner, each agency will get the benefit of the best use of that employee and consistent with the budgeted funds for the activities contemplated by each agency.
If the employee were to receive both his salary (unless it were charged to annual leave or compensatory leave which he had accrued) and his per diem, such payment might run afoul of Kentucky Constitution Section 3 prohibiting the granting of public emoluments without public service. The employee in Agency A while serving in an unrelated Board B is performing no service for Agency A for which he should be compensated.
In your hypothetical situation, an employee or officer of Kentucky State University has no comparable duties which requires him to sit on the State Board of Examiners of Social Work. When he is on the board, he performs no specific activity for the Kentucky State University which is in the scope of his duties at the University, or furthers the University's activities.
In such case, he should be placed on leave at the University (if he has accrued paid leave, he can be paid, but this leave day is deducted from his accrual, or placed on leave without pay) and receive only his per diem from the board.