Request By:
Monte D. Gross, Attorney
Finance and Administration Cabinet
New Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Martin Glazer, Assistant Attorney General
You seek an opinion of this Office as to the proper interpretation of KRS 18A.185 which provides:
"For the purpose of any regulation issued under KRS 18A.110 or 18A.155 governing entitlement to annual leave days, sick leave days or the accumulation of such leave days, any period of service as an elected state official, including but not limited to service in the general assembly, by any officer or employe to whom such regulation applies shall be considered to have been full-time employment in the state service."
Former Personnel Commissioner Dick Robinson wrote on August 6, 1980, that members of the General Assembly were eligible for annual and sick leave days earned previous to the date of the letter based on H.B. 518 (1980 General Assembly) now codified as KRS 18A.185.
However, Dee Maynard, the Personnel Commissioner who succeeded Robinson, wrote on July 26, 1983, that service as a member of the General Assembly can be used to add to total service "for the purposes of determining the amount of accumulation of annual and sick leave. "
In other words, Ms. Maynard is saying that, under Administrative Regulation 101 KAR 1:140 § 2 (for merit employees) and 101 KAR 1:200 § 1 (for non-merit), time spent as a member of the General Assembly will be added to other service to allow increases of earned leave days. Example:Years of ServiceAnnual Leave Days0-5 years1 leave day per month5-10 years1 1/4 leave days per month10-15 years1 1/2 leave days per month15 years and over1 3/4 leave days per month
If an employee had a total of seven years of service which included three previous years as a member of the General Assembly, he would now be entitled to earn 1 1/4 leave days per month. If he is now a member of the General Assembly, he does not earn leave days while in such position.
If he cannot now earn such, how could he retroactively earn leave days for his General Assembly service?
Besides, to interpret KRS 18A.185 as Dick Robinson has done in his letter of August 6, 1980, might run afoul of a constitutional prohibition, Section 3, to wit:
"All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services; but no property shall be exempt from taxation except as provided in this Constitution; and every grant of a franchise, privilege or exemption, shall remain subject to revocation, alteration or amendment." (Emphasis supplied.)
While the General Assembly could authorize the earning of annual leave in advance as part of the emoluments of service, to grant sick leave after the fact of serving time would be a grant in violation of Section 3, above.
Therefore, it is our opinion that Ms. Maynard was correct in interpreting KRS 18A.185, that General Assembly time may be included in determining total length of service for purposes of figuring the 1 day, 1 1/4 days, 1 1/2 days, or 1 3/4 days of annual leave earned per month for those persons eligible to earn and now earning annual leave.
But, members of the General Assembly do not earn annual or sick leave while they are in such positions.