Request By:
Theresa L. Holmes, Esq.
Corporate Counsel
Lexington Fayette Urban County Government
The Municipal Building
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter seeking an opinion as to the constitutionality of KRS 61.396 as amended in 1978. At that time the word "may" was changed to "shall" and the statute now reads:
"All officers and employes of counties, municipalities, school districts or other political subdivisions of the state who are members of the national guard or of any reserve component of the armed forces of the United States, including the United States public health service, shall be granted annual military leave by their respective employers as provided in KRS 61.394." (Emphasis supplied.)
When the above-quoted statute is read in conjunction with KRS 61.394, local governments are now required to grant two work weeks of paid military leave to employes who are members of the Kentucky National Guard or any reserve component of the armed forces of the United States. You also refer to OAG 79-625, concluding that governmental employes are entitled to receive their regular salaries during their annual military leave.
Your first question is as follows:
"Is it a proper use of public funds under Sections 171 and 3 of the Kentucky Constitution for the Urban County Government to pay its employes full salary while the employees are on leave from the Government and are receiving compensation from the National Guard or reserve components of the Armed Forces? "
You maintain that the employees during their annual military leave perform no services for the Urban County Government. You state that the annual paid military leave is in addition to normal vacation time and you cite the case of
Whitworth v. Miller 302 Ky. 24, 193 S.W.2d 470 (1946) holding that a Commonwealth's Attorney is not entitled to the salary of his office while on active duty with the army.
Section 3 of the Kentucky Constitution provides in part that no person shall be granted exclusive, separate public emoluments or privileges except in consideration of public services. Section 171 of the Kentucky Constitution states in part that taxes shall be levied and collected for public purposes only.
The case of
Whitworth v. Miller, 302 Ky. 24, 193 S.W.2d 470 (1946) is not relevant to the question you have posed. That case was decided long before KRS 61.394 and 61.396 were enacted and it involved a person who was inducted into the army and served on active duty continuously for over three years, rather than a national guardsman or reservist undergoing his annual two weeks of training.
We first direct your attention to 62 C.J.S., Municipal Corporations, Sect. 721, where the following appears:
"A statute requiring the city to pay its employees during their absence on military duty is not unconstitutional on the ground that it discriminates unfairly in favor of municipal employees, or that it provides for an appropriation of public funds for the payment of a gratuity, or on the ground of denial of equal protection of the law. A statute entitling municipal employees absent on ordered military or naval duty to leaves of absence and to compensation is designed to protect municipal civil service employees who should volunteer in the Naval and Marine Corps Reserves either in peace or war time; no order may be promulgated by which the benefits of such law may be denied or diminished."
An annotation in 8 ALR 4th at pages 704 to 721 concerning "Validity and Construction of State Statutes Requiring Employers to Compensate Employees for Absences Occasioned by Military Service" states in part at pages 707-708:
"Statutes requiring employers to compensate employees during periods of military absence have generally been held to be within the authority of the state although there is some authority to the contrary."
* * *
"While some statutes expressly provide that employees be compensated only to the extent that their civilian pay exceeds their military pay, courts have held that statutes which require that employees be granted leaves of absence 'without loss of pay' require the employer to provide the full amount of the employee's civilian compensation."
The Court in Reed v. City of Tulsa, Okla., 569 P.2d 451 (1977) said:
". . . With the enactment of 72 O.S. 1973 Supp., Sect. 48, the State encouraged participation in the national defense system. The interest served by both the National Guard and the U.S. Military Reserve components is clearly of more importance than local or municipal interests, thus the municipal personnel rules are superseded by state statutes dealing with the National Guard and other Military Reserve components and we so hold."
The courts in the following cases have upheld statutes requiring compensation to public employes during military absences against challenges under both the federal and state constitutions. In
Bowers v. City of San Buenaventura, 75 Cal. App.3d 65, 142 Cal. Rptr. 35 (1977, 2nd Dist.), the Court upheld the validity of a statute providing for payment to public employes during periods of active duty in the reserve corps, National Guard or Naval Militia. It rejected the city's contention that the statute violated state constitutional provisions prohibiting the expenditure of city funds for a nonmunicipal purpose. The statute had a statewide purpose of encouraging public employes to participate in military training and that purpose could not be achieved unless employes received temporary military leave with pay. The statute may be helpful to recruitment and employe morale and the military training of the employes may improve their job performance.
In
Henn v. Mt. Vernon, 198 App. Div. 152, 189 N.Y.S. 851 (1921), the Court said the statute providing compensation to public employes during their absence on ordered military duty was no more a gift of public moneys than statutes providing vacations with full pay and two hours voting time with pay. The statute was also compared to veterans preference provisions which have been uniformly regarded as constitutional.
The Court, in Hoyt v. Broome County, 285 N.Y. 402, 34 N.E. 2d 481 (1941), upheld the validity of a statute providing public employes with compensation during periods of active military service as members of the National Guard and Federal Reserve Corps. Compensation for such service was not a gift in violation of the state constitution. Federal military service is a state or county purpose and one purpose of the statute is to secure the continuance in public service of those found competent to discharge the duties thereof.
In
Loomis v. Board of Education, 376 Pa. 428, 103 A.2d 769 (1954), the Court, in response to the contention that the state received no benefit for the money expended to its employes while they were in military service, said the public benefitted in that the intensive military training contributed to the efficiency of those public employes. The Court compared the 15 days paid military absences with paid sick leave and said the military absence provision is reasonable and presented a stronger case for constitutionality than the sick leave which confers no benefit upon the public. The legislature has recognized the worth of military service on the part of public employes. The test is not the wisdom of the classification but good faith in the classification. At page 773 of its opinion in Loomis, supra, the Court said:
"The discipline, loyalty and public spirit necessarily acquired by the military reservist are conducive to the better performance of his duties as a public employe. The public unquestionably derives benefit therefrom and this justifies the classification in question."
See also
Clopton v. Scharrenberg, 106 Cal. App.2d 430, 235 P.2d 84 (1951) and
Williams v. Walsh, 289 N.Y. 1, 43 N.E.2d 498 (1942).
While we cannot find any reported Kentucky case directly in point, the experiences of other states indicate that the expenditure of public funds by local governments to pay employes their salaries while those employes who are members of the National Guard and reserve components of the armed forces of the United States are on annual military leave, does not violate state constitutional provisions concerning the expenditure of public funds.
Your second question asks:
"Does the title of Senate Bill 77 (1978 Ky. Acts, Chapter 38) meet the requirements of Section 51 of the Kentucky Constitution?"
The bill is entitled "An Act relating to the Kentucky national guard" and consists of two sections. Section 1 amended KRS 38.500 relative to educational incentives for members of the National Guard and Section 2 amended KRS 61.396 to require local governments and others to grant annual military leave to members of the National Guard and reserve components of the armed forces of the United States.
Section 51 of the Kentucky Constitution provides in part that the subject of any bill enacted by the General Assembly shall be expressed in the title. You state that the title gave no notice to cities of the substantial changes made by the amendment to KRS 61.396.
In
Board of Trustees of P.& F.R.F. v. City of Paducah, Ky., 333 S.W.2d 515 (1960), the Court said in part:
". . . A title need not be an index or table of contents for the
Act. Guthrie v. Curlin, Ky., 263 S.W.2d 240;
Preston v. Clements, 313 Ky. 479, 232 S.W.2d 85. Where the title adequately expresses a general subject, any provision in the Act that is germane to or reasonably embraced within that general subject must be considered to be within the scope of the notice of subject given by the title. . . ."
In
Kentucky Mun. League v. Com. Dept. of Labor, Ky., 530 S.W.2d 198 (1975), the Court rejected an argument that "An Act relating to minimum wage" could not include provisions dealing with overtime pay. The Court said overtime pay is generally considered a "probable adjunct" of minimum wage. See also
State Property & Buildings Commission v. Hays, Ky., 346 S.W.2d 3 (1961);
Miller v. City of Louisville, Ky., 321 S.W.2d 237 (1959);
Daly v. Look, Ky., 267 S.W.2d 77 (1954).
In our opinion the title of Senate Bill 77 (1978 Ky. Acts, Chapter 38), which in part amended KRS 61.396, is sufficient to comply with the requirements of Section 51 of the Kentucky Constitution as the provisions of the Bill are all reasonably embraced within the title's general subject matter.