Request By:
John P. Hanes
Warren Circuit Court Clerk
Courthouse
Bowling Green, Kentucky 42101
Opinion
Opinion By: Steven L. Beshear, Attorney General; Patrick B. Kimberlin III, Assistant Attorney General
This is in response to your recent letter to this office wherein you ask our opinion as to the following questions:
1. Whether a circuit court clerk, a constitutionally elected official, is entitled to claim credit, pursuant to KRS 61.546, for accumulated unused sick leave assuming he can prove the number of days he was away from his office due to illness?
2. Assuming that a circuit court clerk is not entitled to claim accumulated unused sick leave under KRS 61.546, may he claim such unused sick leave accumulated while he was previously serving in the capacity of a deputy circuit court clerk?
As you are aware, KRS 61.546 permits any member of the Kentucky Employes' Retirement System (KERS) or of the State Police Retirement System (SPRS) who is employed by the Commonwealth to receive credit, upon retirement, for the unused sick leave that person has accrued while in the state service. As a practical matter such accumulated unused sick leave must be certified by the agency or department for which the particular retiring individual is working. Once this certification is made by the agency or department to the KERS OR SPRS the individual's retirement account is credited with whatever period of time he has accumulated as unused sick leave.
With respect to your first question, we would point out that the 1975 Judicial Amendment provides for a unified court system and gives the Supreme Court of Kentucky the authority to adopt whatever administrative rules, regulations, procedures, etc. applicable to those individuals who are employed by that system. Kentucky Constitution Section 110(5)(b) and Section 116. 1 The Administrative Office of the Courts (AOC) is the agency responsible for reporting to the KERS for retirement purposes on behalf of the circuit clerk and deputy clerk. In this regard, the Kentucky Supreme Court has adopted the Administrative Procedures of the Court of Justice, Part III, Personnel Policies. However, these Personnel Policies, as implemented by the AOC, although dealing with the entire spectrum of employee considerations including sick leave, do not apply to circuit court clerks. Accordingly, there is no legal authority upon which a circuit court clerk is entitled to sick leave, and therefore there is no legal basis upon which he can accrue unused sick leave time which ultimately might be credited pursuant to KRS 61.546.
The apparent reason for not applying sick leave policies to a circuit court clerk would appear to be that, as an elected official, a circuit court clerk is entitled to whatever salary that position pays for the length of his term of office regardless of how many days he might be absent due to illness. Thus, because he is an elected official, he does not forfeit any of his salary or pay due to illness. On the other hand, sick leave policies have traditionally been developed for non-elected employees in order to permit them to be away from work, due to illness for certain periods of time without losing pay which would otherwise be forfeited.
Accordingly, it is our opinion that a circuit court clerk, because he is an elected official, is not entitled to sick leave under the Personnel Policies of the AOC and, therefore, cannot legally accumulate unused sick leave since there is no recognized personnel policy related to his employment which would permit him to do so. Thus, it is impossible for such an official to accrue unused sick leave time while a clerk of the circuit court.
As to your second question, we would point out that the Personnel Policies previously alluded to in this opinion apply to deputy court clerks. Therefore, the sick leave policies set out in Section 6.12 of those Personnel Policies, including the right to accumulate unused sick leave, apply to deputy circuit court clerks. Accordingly, the unused sick leave accumulated while an individual is employed as a deputy circuit court clerk, upon being properly certified by the AOC can be submitted to the KERS for credit under KRS 61.546. In passing we would point out that a current clerk who has previously been employed as a deputy clerk may submit for credit the unused sick leave time he accumulated as a deputy clerk.
Footnotes
Footnotes
1 Our office has previously held that circuit court clerks and deputy clerks are to be considered state employees. See OAG 76-509 (copy attached).