Request By:
Earl R. McDaniel, Chairman
Commission on Fire Protection
Personnel Standards & Education
Department of Housing,
Buildings and Construction
U.S. 127 South
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You have requested an opinion of this office as to what is included in determining the term "total annual compensation" for purpose of the 15% supplemental salary increment given to firefighters by H.B. 793, enacted by the 1980 Kentucky General Assembly.
The Act creates a "firefighters' foundation program fund" administered by the Commission of Fire Protection Personnel Standards and Education established pursuant to KRS 95A.020.
That Commission will pay to local governments 15% of each firefighter's total annual compensation, to be paid to him after the local government meets certain requirements of salary, education, and training.
Its purpose is to upgrade firefighters' training similar to the methods used to upgrade police qualifications.
Section 6 of the Act provides:
"An eligible local government shall be entitled to receive an amount equal to fifteen percent (15%) of each firefighter's total annual compensation from the fund to be paid to each firefighter in addition to his regular salary. " (Emphasis supplied.)
You point out that firefighters in many areas are subject to "scheduled overtime" and "callback overtime. " "Scheduled overtime" is that time which makes up the difference between the normal 40-hour week and the 56-hour week required of firefighters.
"Callback overtime" is that time in which a firefighter is held beyond his 56-hour work week or called back in case of emergency, disaster, or manpower shortage.
You want to know whether the 15% is figured on all overtime or just the scheduled overtime.
Since the statute is new, it has not been interpreted by a court. However, it appears to some extent to parallel the police incentive program under the Law Enforcement Foundation Program.
There, the statute (KRS 15.460(1)) provides that local units of government can receive 15% of the officer's "annual salary" from the LEFPF (Law Enforcement Foundation Program Fund).
In OAG 77-89, we advised that the 15% did not cover overtime, because the program had regulations excluding such monies and figured only on the base salary. We enclose a copy of that opinion.
However, here we have no regulations yet and there is a factual difference.
The scheduled overtime of which you speak is required by KRS 95.500 (second-class cities and urban-county governments) which provides for a three-platoon system of 24 hours on and 48 hours off.
KRS 95.505 authorizes third-class cities to utilize the same schedule.
In any event, the statute affecting those cities, in effect, requires certain "overtime" (over 40 hours) payment by virtue of KRS 337.285.
In short, such payment of overtime becomes the regular salary of the firemen by virtue of the requirement of KRS 95.500 and 95.505.
Therefore, the "scheduled overtime" is figured in determining the 15% to be paid to the city for the firefighter.
The "callback" overtime is a part of the foremen's "total annual compensation" and, in our view, is figured in determining the 15%.
In our opinion, uniform allowances are, as you agree, reimbursements for prepurchase of uniforms by the firefighter (in the same light as expenses) rather than part of his compensation for performing his job. It is in the same category as equipment.
CONCLUSION
1. Scheduled overtime, being regular, fixed, and required by statute is includable in calculating the 15% payment to firefighters.
2. Callback overtime, being part of "total annual compensation" , is includable in calculating overtime.
3. The payment for uniform allowances is not compensation for purposes of calculating the 15%.