Request By:
William E. Rummage, Esq.
Lincoln Federal Bldg.
322 Frederica Street
Owensboro, Kentucky 42301
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning the city utility commission of the city of Owensboro, its employes and administrators or directors, and the applicability of KRS 90.300 to 90.410 to the commission and its employes and administrators or directors.
Your first question is as follows:
"As to KRS 90.300(1)(a), does 'administrative or directorial position' mean solely and only the head of a department of municipal government? Would the General Manager of the utility plant under the jurisdiction of the City Utility Commission of the City of Owensboro be considered an 'administrative or directorial position' in view of the fact that he is not head of a department? Would the Assistant General Manager of the utility plant under the jurisdiction of the City Utility Commission of the City of Owensboro, who is not the head of a department, be considered an 'administrative or directorial position?'"
KRS 90.300(1)(a), as amended by the 1982 session of the General Assembly and effective July 15, 1982, states that, "'Administrative or directorial position' means the head of a department of municipal government. "
As discussed in OAG 79-171, copy enclosed, the city utility commission of the city of Owensboro, organized pursuant to KRS 96.530, is a public body politic and corporate, completely separate from the city. However, KRS 96.530(1) provides in part as follows:
". . . In cities of the second or third class providing civil service coverage for city employes the utility commission appointed under this section shall provide such civil service coverage for all of its employes and it shall exercise the powers and functions with respect to such employes which are vested in the city legislative body with respect to the city employes by KRS 90.380. . ."
KRS 90.380 is, of course, part of the civil service act for employes of cities of the second and third classes under KRS 90.300 to KRS 90.410. The city utility commission exercises the same authority over its employes as the city with respect to number and compensation. Furthermore, the city utility commission is bound by the provisions of KRS 90.360 concerning dismissal, suspension or reduction. See OAG 79-171, at page three.
As previously indicated, a city utility commission organized pursuant to KRS 96.530 is a corporate entity, separate from the city, and not included by KRS 90.300 to KRS 90.410 as being within the civil service program applicable to employes of cities of the second and third classes. Thus, the statutes in KRS Chapter 90 dealing with the civil service program for cities of the second and third classes make no mention of the employes, administrators, directors or other personnel of a city utility commission and only refer to employes of the municipal government.
KRS 96.530(1), however, requires that a city utility commission, in a city of the second or third class providing civil service coverage for city employes, provide such civil service coverage for its employes under the provisions of KRS 90.300 to KRS 90.410. The city utility commission would, therefore, be operating under the same civil service provisions as the cities of the second and third classes and would be subject to the definitions set forth in KRS 90.300. If the city utility commission were part of the city government, its administrative or directorial personnel would generally not be considered employes for purposes of civil service coverage. In those circumstances where the city utility commission is required to extend civil service coverage to its employes it would be only fair and consistent to extend coverage to those types of positions included under the city's civil service system and exclude those types of positions excluded by the city's civil service system.
We have not been furnished with a chart setting forth the organizational structure of the city utility commission or a position description of the job of general manager of the utility plant. However, on the assumption that the position of the utility plant's general manager corresponds to a head of a department of the municipal government, the utility system's general manager is not an employe of the utility commission for purposes of civil service coverage as he is functioning in an "administrative or directorial position." Under the same line of reasoning the assistant general manager of the utility plant is an employe of the utility commission for purposes of civil service coverage as he is not functioning in an "administrative or directorial position."
Your second question asks:
"As to KRS 90.300(1)(f), may the City Utility Commission, the appointing authority, elect to designate administrative or directorial positions to be hereafter filled by persons designated as employees as contemplated under this section of the statute, or did the legislature mean that the appointing authority may only designate persons now in administrative or directorial positions as employees and after the termination of their employment, if that termination is after December 31, 1982, that said administrative or directorial position shall be interpreted as being filled by a non-employee or head of department as contemplated by the statute?"
KRS 90.300(1)(f) provides as follows:
"'Employe' means any person employed in the conduct of municipal affairs, but the term shall not include the mayor or city manager, an administrative or directorial position established for cities of the second or third class, except that the legislative body, no later than December 31, 1982, may elect by ordinance to designate persons in administrative or directorial positions as 'employes,' however, any person employed in an administrative or directorial position at the effective date of this Act shall continue to be covered by the provisions of KRS 90.310 to 90.410 for such time as he is employed in such position notwithstanding the removal of the position from the definition of 'employe' and in cities of the second class it shall not include the offices of the board of health, members of the planning and zoning commission, the board of trustees of the public library, members of the housing authority, municipal hospital commission or the trustees, members or corresponding officers of similar boards or commissions of cities of the second class, persons employed on temporary and special projects or to persons whose regular employments with the city are seasonal and are less than nine (9) months in any one (1) year, and the city clerk or city assessor of a city of the second class operating under the commission form of government."
As we construe the above-quoted statute, which was amended by the 1982 session of the General Assembly, the intent, generally, is to remove those persons in administrative or directorial positions from the definition of an employe for purposes of civil service coverage. Civil service provisions frequently exclude heads of departments. See McQuillin, Mun. Corps. (3rd Ed.), Vol. 3, § 12.76. However, some protection is afforded for persons holding administrative or directorial positions. First, persons employed in administrative or directorial positions at the effective date of the statutory amendment (July 15, 1982) shall continue to be covered by the civil service provisions during such time as they are employed in such positions. Second, no later than December 31, 1982, the city legislative body (or, as in your situation, the city utility commission), may designate persons in administrative or directorial positions as employes. Thus, if the action was taken prior to January 1, 1983 it would apply to persons subsequently hired to fill administrative or directorial positions, because those persons holding such positions at the effective date of the amendment are protected for the remainder of their employment in such positions, even if no action was taken prior to January 1, 1983 to designate persons in those positions as employes for purposes of civil service coverage.
Your third question asks:
"As to KRS 90.300(1)(f), was it the intent of the legislature to remove positions from the definition of 'employe?'"
As we stated in part in our response to your second question, the statute as amended by the 1982 session of the General Assembly intended, generally, to remove those persons in administrative or directorial positions from the definition of an employe for purposes of civil service coverage.
Your fourth question is as follows:
"After December 31, 1982, can an employee of the City Utility Commission of the City of Owensboro, a city of the second class, upon promotion to an administrative or directorial position as contemplated by the statute, be placed under civil service by the Commission? In the event he cannot, is it correct to state that such employee would lose his civil service rights and pension rights thereafter, upon promotion to an administrative or directorial position?"
An employe of the city utility commission, operating under the civil service provisions of KRS 90.300 to KRS 90.410, who is promoted to an administrative or directorial position with the utility commission after July 15, 1982, where the administrative or directorial position has not been designated an employe position prior to January 1, 1983, does not retain his civil service status as he is no longer an employe under KRS 90.300(1)(f). Neither KRS 90.400, dealing with the pension fund in cities of the second class, nor any other section of KRS 90.300 to KRS 90.410, contains any provision for the retention of rights relative to civil service and a pension when a person ceases to be an employe as defined by statute. See OAG 79-351, copy enclosed, at page three, where we said that although the statute gives employes a vested interest in tenure and pension benefits, such interest does not include the right to a refund of contributions upon termination of employment.