Request By:
Mark W. Dobbins, Esq.
Assistant Director of Law
Department of Law
City Hall
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning the interpretation and application of sections of KRS 90.110 to 90.230 which pertain to the civil service system in cities of the first class.
Certain individuals, currently employed by the local Board of Health, were formerly employed by the Tuberculosis Unit of the Kentucky Department for Human Resources. As state employes these persons were duly qualified and had passed the probationary period for classified positions within the State Merit System. The state terminated the employment of these persons and they became employes of the local Board of Health, performing the same job functions for the local entity as they had performed for state government.
You state that counsel for the Board of Health cites KRS 90.180 in support of his contention that these employes who transferred from a state merit system position into the city's civil service program retain all rights associated with their former employment, including the original date of employment as the date from which various benefits begin. Counsel further maintains that the attainment of a classified position past the probationary period confers a "property interest" upon the employe entitling him to certain constitutional procedural rights. The persons in question, according to counsel, would have obtained this "property interest" while protected employes of the state and since they are now protected employes of a city, which he says is a form of state government, it would appear that they have a legitimate claim to retain their original employment date.
Counsel for the Civil Service Board maintains that the language in KRS 90.180 relied upon by counsel for the Board of Health was intended to "grandfather" into the city civil service system those persons occupying merit system types of positions at the time the civil service statute was enacted. He maintains that KRS 90.210 disposes of the matter in question. It applies to persons in previously unclassified positions who have been reclassified into the civil service program and, in his opinion, offers the Civil Service Board no latitude in the method by which it can confer effective seniority dates.
The specific question you have presented to this office is as follows:
"The question presented is whether these employees, who have worked in the Board of Health facility, but who have been employees of the State Department for Human Resources, may be brought into the City of Louisville Classified Service and granted, for the purposes of seniority and benefits accumulation, effective employment dates corresponding to those dates they began working for the State. It is the opinion of the counsel for the Louisville Civil Service Board that they may not; it is the opinion of the counsel for the Board of Health that they may. Because of the conflict and because of the fact that there is a connection with the State Department for Human Resources, I would very much appreciate the opinion of the Attorney General on this matter."
KRS 90.180(2) provides in part as follows:
". . . That all employes holding positions subject to the provisions of KRS 90.110 to 90.230 on the effective date thereof who were holding positions in classified service under provision of previous acts, shall be considered as having satisfied hereunder all of the qualifications for obtaining and holding such appointments as they then had, and further provided that all employes holding positions subject to the provisions of KRS 90.110 to 90.230, on the effective date thereof, and who were not holding positions in classified service under provisions of previous acts, shall be considered as having satisfied hereunder all of the qualifications for obtaining and holding original appointments under KRS 90.110 to 90.230, and shall be considered as having been given probationary appointments. . . ." (Emphasis supplied.)
The reference in the above-quoted provision of the statute to "previous acts" refers to previous acts of cities of the first class relating to merit system provisions in existence prior to the effective date of the provisions of KRS 90.110 to 90.230. It does not refer to merit system provisions covering state employes or merit system provisions applicable to employes in other classes of cities.
KRS 90.210 provides in part as follows:
". . . The date of any extension of the provisions of KRS 90.110 to 90.230 to include additional offices, positions, or classes of positions, or places of employment, shall be considered as the effective date of those sections with respect thereto, and employees then holding such offices, positions, or places of employment, thereby made subject to the provisions of KRS 90.110 to 90.230, shall be considered as having satisfied all of the qualifications for obtaining original appointment under those sections, and shall be considered as having been given probationary appointments as defined in KRS 90.110, as of the date they are thus placed in the classified service hereunder. "
This statute provides that if the provisions of the city civil service system are extended to cover additional positions, the date the system is extended to cover these positions is the effective date on which the provisions of the system apply to these positions. There is nothing in the statute permitting those persons not previously covered by the city's merit system to include under the merit system any periods of time worked prior to the effective date of the application of KRS 90.110 to 90.230 to those persons and their positions.
In McQuillin Mun. Corp. (3rd Ed.), Vol. 4, § 12.254, it is stated that seniority rights are not inherent in civil service status but the extent thereof is measured by the civil service laws and the rules of the civil service commission. Furthermore, in § 12.254a of McQuillin, supra, it is stated that an employe has no vested right to any particular method of calculating seniority. Seniority is normally based on the length of continuous service. The author states that in computing seniority rights, city service may not be added to state service and cites the case of
Bacom v. Reavy, 45 N.Y.S. 2d 85 (1943). See also the case of Matter of Fidek. 146 N.J. Super 338, 369 A.2d 974 (1977) where the court said the provisions of a civil service act applicable only to employes in county, municipal or other local service cannot be applied to employes in the state service.
In 56 C.J.S., Master and Servant, § 5, it is stated that an employe has no inherent right to seniority in service and he can only have such rights as may be based on a contract or on a statute or administrative regulation relative thereto. It is further stated in 56 C.J.S., Master and Servant, § 28(41)(e), that seniority continues as long as the employe is in the service of the employer. Finally, in 51 C.J.S., Labor Relations, § 14, the following appears:
"'Seniority rights,' such as rights to preferential treatment based on length of service, are not an incident of and do not arise from the mere fact of employment, but are based on contract or statute."
Thus, in response to your specific question, there is no statutory authorization for persons presently employed by the local Board of Health, who were formerly employed by the State Department for Human Resources, who are now under the City of Louisville's civil service system (KRS 90.110 to 90.230), to be granted for purposes of seniority and the accumulation of benefits under the city's plan, employment dates corresponding to the dates on which they began their state employment.