Request By:
Mr. Paul H. Twehues, Jr.
Campbell County Attorney
331 York Street
Newport, Kentucky 41071
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise questions about KRS 78.470, 78.480, and OAG 82-79. As you know, we welcome analytical criticism, since it is our aim, under KRS 15.020 and 15.025, to strive to turn out the best possible guidelines for the benefit of people in government until any subsequent modification by the courts or the General Assembly.
The opinion involved the Campbell County Police Force. Campbell County has a population of less than 300,000. KRS 78.470 and 78.480, in a county having a population of 300,000 or more, and which county has a merit system for its police force, permit such police to organize and engage in collective bargaining with fiscal court in respect to wages, hours, terms and conditions of employment.
In simplistic terms, the two statutes do this: (a) Such police may organize to engage in collective bargaining with fiscal court. It is purely permissive on their part. They do not have to so organize for that purpose. (b) Where the police in such qualifying county opt to organize to engage in collective bargaining with fiscal court, the county's governing body may then enter into collective bargaining with the chosen representatives of the police in good faith, looking toward an agreement on matters relating to wages, hours, terms and conditions of employment and the execution of a written contract. (c) When such an agreement in writing is executed between the parties, it will be binding and enforceable.
We concluded in OAG 82-79 that in those counties having a population of less than 300,000, in the absence of the fiscal court's voluntary permission or recognition, collective bargaining agreements would not be enforceable or binding on the parties. In the converse, we said that such counties (less than 300,000 population) could, in their discretion, recognize collective bargaining, and such recognition would mean that the agreements would be enforceable.
It is your argument that, since counties of less than 300,000 population are outside of KRS 78.470 and 78.480, the statutes in effect exclude such counties under the principle of expressio unius est exclusio alterius. Thus you say the statutes impliedly prohibit any voluntary collective bargaining. You say that to permit counties of less than 300,000 population to voluntarily enter into collective bargaining would make a nullity of the two statutes. The simple point is merely that counties of less than 300,000 population do not come under KRS 78.470 and 78.480. The inclusion of counties of 300,000 or more simply means that counties of less population do not come under the statute. See
Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387 (1940), for a proper application of the maxim.
What you have failed to consider in your analysis is that there is ample authority in the case law and statutory law which authorize counties of less than 300,000 population to voluntarily engage in collective bargaining, leading to a finally executed written agreement which would be binding on the parties.
In all counties in Kentucky the county judge executive may appoint a county police force, which will be funded by appropriate action and budgeting by the fiscal court. See KRS 70.540. Actually such members of a county police force are county employees and are subject to the administrative and legislative controls of the county judge executive and the fiscal court as a body, pursuant to KRS 67.080(1)(a)(c)(e), (2)(a)(c), KRS 67.083(3)(u) (provision for police protection), and KRS 67.710(7) (relating to the appointment, supervision, suspension and removal of county personnel) .
Thus any fiscal court in Kentucky has the supervision and control over county finances and county personnel. In the exercise of the broad county powers above enumerated, any fiscal court can enter into a contract with the county personnel which is deemed to be in the county's and general public's interest and involving, obiously, such items as wages, hours, terms and conditions of employment. It was definitely not the legislative intent that at one stoke KRS 78.470 and 78.480 would negate the broad powers set forth above. Indeed, there is no reference to those broad powers in 78.470 and 78.480. Your theory would cripple county governments and make them powerless to act in the interest of policing and public security.
It is true that the express provisions of statute must be followed by a fiscal court in connection with the county's contracts. It may contract for purposes expressly provided by statute, which we pointed out above.
Leslie County v. Keith, 227 Ky. 663, 13 S.W.2d 1012 (1929) 1013.
In addition to the clear statutory authority of counties under 300,000 in population to voluntarily engage in enforceable collective bargaining agreements, as outlined above, the Kentucky Appellate Courts have recognized the principle that a public agency may elect to negotiate with a representative of its employees, although it has no duty to do so. See
Fayette County Ed. Ass'n v. Hardy, Ky.App., 626 S.W.2d 217 (1980). In that case the Fayette County Association and the Fayette County Board of Education entered voluntarily into a collective bargaining agreement. The Court of Appeals, in upholding the authority of the school board to enter into such an agreement, relied in principle upon the holding in
Board of Trustees of U.K. v. Public Emp. Council, Ky., 571 S.W.2d 616 (1978), in which the Supreme Court ruled that the Board of Trustees of the University of Kentucky could voluntarily enter into a collective bargaining agreement with nonacademic employees, although it has no duty to do so. The Supreme Court cited the statutes in KRS Chapter 164 which relate to the Board of Trustee's control over its public employees, and as relates to compensation, hiring, suspension, conditions of employment, etc. The court was of the opinion that the board has the implied authority to perform acts which are incidental and collateral to its express authority. Thus the board could, voluntarily, bargain collectively with representatives of its employees and commit itself contractually to a written agreement involving wages, retirement, work schedule or other authorized condition of employment, and so long as the agreement covers all employees of the class involved.
Thus we reiterate our position in OAG 82-79 that any county of less than 300,000 population may, through its fiscal court, voluntarily enter into a binding collective bargaining agreement with its county police force, as relates to hours, wages, and other conditions of employment.