Request By:
Mr. Paul W. Trussell, Jr.
Executive Director
Comprehend, Inc.
P. O. Box G
Maysville, Kentucky 41056
Opinion
Opinion By: STEVEN L. BESHEAR, ATTORNEY GENERAL; Patrick B. Kimberlin, III, Assistant Attorney General
This is in response to your recent letter wherein you ask whether the Comprehensive Care Centers (hereinafter Centers) in Kentucky must participate in the Kentucky Employes Retirement Systems (hereinafter KERS). As you may be aware, by Executive Order 66-378 these Centers were permitted to become participating agencies in the KERS. (Copy attached). Thereafter, the employes of each Center made a determination as a group whether they would or would not elect to join the KERS. By Executive Order 69-667, issued on September 11, 1969, sixteen Comprehensive Care Centers were specifically authorized to participate in the KERS and the participating date of each Center varied depending upon its actual entrance into the KERS. (Copy attached). 1
However, employes of one of the Centers (Kentucky Region Eight) subsequently filed suit maintaining that they should not have to participate in the KERS. This litigation ultimately resulted in an opinion of the Kentucky Court of Appeals finding the Centers were not integral parts of state government and thus were not state "agencies" within the meaning of KRS 61.510 and were not eligible to be brought into the KERS pursuant to the previously mentioned gubernatorial Executive Orders.
Kentucky Region Eight. etc., et al. v. KERS, Ky., 507 S.W.2d 489 (1974).
In light of the foregoing decision of the Court of Appeals, the 1974 Session of the General Assembly amended KRS 61.510(3) to include entities which were not otherwise integral parts of state government. KRS 61.520(3) was also amended satifying all prior Executive Orders including those which had dealt with the participation of mental health-mental retardation boards.
In light of the 1974 amendment of KRS 61.510(3) and 61.520(3) it is our opinion that those Centers (including Comprehend, Inc.) which are participating in the KERS pursuant to Executive Orders 66-378 and 69-667 are doing so legally despite their private non-profit corporate structure. Moreover, once this participation in the KERS has been initiated by a Center it may not thereafter voluntarily withdraw from such participation since Chapter 61 of the Kentucky Revised Statutes does not authorize such a voluntary withdrawal of membership or participation. KRS 61.520(4).
Finally, the fact that some of the Centers do not participate in the KERS does not mean that continued mandatory participation by those that have been participating is discriminatory. It is our understanding that the initial decision to participate or not participate in the KERS was made by a majority of the employes at each Center. At two or three of these Centers it was the consensus not to participate in the KERS and thus no gubernatorial Executive Order was ever issued which would have permitted these particular Centers to participate. On the other hand, at those Centers where it was the consensus of the employes to participate in the system. Executive Order 69-667 specifically permitted their entry into the KERS. Under these circumstances, we do not feel that any discrimination exists.
Footnotes
Footnotes
1 Comprehend, Inc. was authorized to participate in the KERS as of July 1, 1969. (See Executive Order 69-667).