Request By:
Mr. Charles L. Lively
Grayson County Judge Executive
100 Court Square
Leitchfield, Kentucky 42754
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written concerning "personnel policy" for all Grayson County employees. Your work on establishing such a policy has been hampered, you say, by the fee officers refusing to be included in one uniform policy. Thus you raise several questions about this matter.
Question No. 1:
"Who are county employees? "
The term "county employees" includes the county employees who serve directly under the authority of the fiscal court. See KRS 67.080, 67.083 and 67.710(7), relating to the basic powers of a fiscal court.
The term "county employees" includes the deputies, assistants and various statutory support personnel of local or county constitutional officers. This is true since such personnel, although directly employed under a local constitutional officer, perform statutory functions that are designed for the citizens of each county. In Shipp v. Rodes, 196 Ky. 523, 245 S.W. 157 (1922), the court pointed out that "The sheriff is a county officer primarily, acting for and on behalf of the county, and as such ought to be required to account to the county for the fees collected from litigants therein in excess of what he can lawfully retain for salaries. " (Emphasis added). That judicial characterization applies equally to all other local or county constitutional officers. It follows that the deputies or assistants of these county constitutional officers are "county deputies or employees." Thus these constitutional officers and their deputies have been county officers and employees, respectively, of the county since the early constititutional history of this state. This constitutional and socio-political affiliation is deeply embedded in Kentucky history. There is a certain degree of interlocking or meshing of various statutory functions of constitutional officers as relates to the executive, judicial, and legislative functions carried out in the counties. This is true, although there is lacking an articulate legislative synthesis (putting together) of these "total county functions."
The fiscal court has the authority to establish the number of deputies and their compensation, pursuant to KRS 64.530. However, the actual "employer" of these deputies is the constitutional officer. As such, he hires, fires, and directs the deputies in their statutory duties. In addition, a county fee officer is required each year to turn over to the county the excess of his receipts over and above the amounts allowable for his personal compensation, the compensation of his legally authorized deputies and assistants, and authorized official expenses. Funk v. Milliken, Ky., 317 S.W.2d 499 (1958).
However, our broad and general conclusion must be taken with caution. The actual application of the broad definition developed here must be examined in terms of the various statutory responsibilities and authorities of the fiscal court, as an employer of county employees directly under its control, and responsibilities and authorities of the local constitutional officers who are the employers of their deputies and assistants.
In connection with county employees, generally, as recognized by statutes, see KRS 61.460, 42 U.S.C.A. § 418, and Shamburger v. Commonwealth, Ky., 240 S.W.2d 636 (1951) (relating to social security coverage); KRS 337.010 (wage and hours); KRS 341.050 (unemployment compensation); KRS 344.010 (civil rights); KRS 342.630 and 342.640 (workmen's compensation); KRS 67.180, 67.185, 67.186 (motor vehicle and compensation insurance) and 79.080 (health insurance) and KRS 78.530 (retirement system).
In further connection with the definition of "county employees" , the local officials with deputies are elected county officers created in the Kentucky Constitution. See § 99, Constitution. Their deputies are inevitably county officers or employees.
Question No. 2:
"Is fiscal court responsible for the same benefits for fee office deputies as road employees and other county employees? Specifically:
a.) Sick Leave
b.) Vacation Leave
c.) Retirement and Social Security Matching
d.) Insurance"
The fiscal court, as the employer, has the authority, in connection with the above personnel and fringe benefit programs, only as relates to the employees working directly under the fiscal court, as concerns taking the initiative and establishing such programs. At present, we know of no statutory authority for a fiscal court's legislating, on its own initiative, on the above personnel and fringe benefit programs for deputies of local constitutional officers.
The initiation of the matter of establishing such personnel policies and fringe benefits as applied to these deputies of the constitutional officers must, if it is done at all, be by the constitutional officer, since he is their employer in the strict sense. In order to initiate such action, the constitutional officer would be required to request in writing the fiscal court to include his deputies in such a county legislative program. Once the constitutional officer requests such action, the fiscal court would have the authority to bring such deputies under a uniform county legislative program, which would apply to fiscal court employees and the employees of the constitutional officers. The county, through fiscal court, has the authority under KRS 67.080(1)(c) to regulate and control the fiscal affairs of the county. See also KRS 67.083(3) (fiscal court has the power to carry out governmental functions necessary for the operation of the county). The fiscal court has under those statutes those express powers mentioned and those powers necessarily implied or incident to the expressly granted powers and which are indispensable to enable it to carry out its declared objects, purposes, and expressed powers. City of Bowling Green v. T. & E. Elec. Contr., Ky., 602 S.W.2d 434 (1980).
We believe that the fiscal court, under its express and implied powers granted in KRS 67.080 and 67.083, has the authority to establish such personnel and fringe benefits programs encompassing its own employees and the employees of the constitutional officers in a uniform system. However, the deputies' participation in the system is based upon the constitutional officer's requesting the fiscal court to so act.
First, the fiscal court is not mandated to establish such personnel and benefits programs for its own personnel. But if it does establish such programs for its employees, it would have to uniformly cover all fiscal court employees alike. The constitutional officer is not mandated to request such programs for his deputies. But if he does, it would have to apply to all of his deputies alike. Once the constitutional officer requests such programs for his deputies, the fiscal court could honor the request, provided that the programs could be adequately funded out of the constitutional officer's fees, or out of the county treasury (where money is available under a properly budgeted fund), or out of both sources.
Question No. 3:
"Since fiscal court has the responsibility (KRS 64.530) to set the number of fee office deputies and their salaries, is it the responsibility of fiscal court to include fee offices in a county personnel policy? "
As explained under question no. 2, the answer is that a fiscal court has no authority or responsibility to initiate county personnel programs applicable to deputies of county constitutional officers. There is simply no statutory authority for that approach. As we said above, the establishing of such programs for the deputies can only come about where the constitutional officer requests the fiscal court to so establish.
Under KRS 64.530, the fiscal court establishes the number and compensation of such deputies, but the constitutional officer, the real employer, makes the personal selection or appointment. Funk v. Milliken, Ky., 317 S.W.2d 499 (1958).
The requirement that the constitutional officer must turn over excess fees to the county is based upon the proposition that the sheriff, for example, is a county officer, and not a state officer. In discharging his statutory duties, he acts on behalf of the county, and thus the fees collected by law belong, by reason of his official position, to the county. Shipp v. Rodes, 196 Ky. 523, 245 S.W. 157 (1922).
Regardless of the constitutional officers' financial tie-in with county government, there is no statutory authority for the fiscal court's initial programming of personnel matters, as suggested above, relating to constitutional officer deputies. The initiating must take the form of a written request, for such programming applicable to the deputies, from their constitutional officer, the appointing authority.
Question No. 4:
"Due to our county filing all reports (including fee offices) under one ID number and all benefits including retirement are paid from General Fund, shouldn't same personnel policy apply to all employees in order to avoid discrimination?"
For purposes of personnel policies and fringe benefits, all county employees directly under the fiscal court must be considered in the same class. Discrimination cannot be made against persons in the same class. See § § 2, 3, and 59, Kentucky Constitution; and Markendorf v. Friedman, 280 Ky. 484, 133 S.W.2d 516 (1939) 519. Also see the Fourteenth Amendment to the Federal Constitution, prohibiting the denial of equal protection of any person. Such discrimination would be arbitrary, unreasonable, and unconstitutional. The classification is subject to the scrutiny of §§ 3 and 59 of the Kentucky Constitution and of the Fourteenth Amendment to the Federal Constitution. That amendment, inter alia, prohibits the denial of equal protection to any person. Exact equality is no prerequisite of equal protection of the laws under that amendment. Rather, the Fourteenth Amendment only forbids classifications involving invidious discrimination, which is defined as a classification which is arbitrary, irrational, and not reasonably related to a legitimate purpose. See Sims v. Eyman, (U.S.C.A. -9, 1969) 405 F.2d 439, 444; Ferguson v. Skrupa, 372 U.S. 726, 732, 83 S. Ct. 1028, 10 L. Ed. 2d 93 (1963); and McLaughlin v. Florida, 379 U.S. 184, 191, 85 S. Ct. 283; 13 L. Ed. 2d 222 (1964). The court, in Lindsay v. Wyman, (U.S.D.C., S.D. N.Y. - 1974) 372 F.Supp. 1360, wrote that in order to determine whether there is an invidious discrimination, there must be a finding of a class upon which the discrimination is practiced.
The county employees who are directly under the fiscal court and the constitutional officer deputies are fundamentally in the same classification in terms of discrimination. However, the immediate responsibility is upon the fiscal court for its employees and upon the constitutional officers for their employees.
Thus the fiscal court's range of responsibility, in seeing to it that all fiscal court personnel and fringe benefit policies be applied equally, extends only to those county employees subject to the direct control and authority of the fiscal court. It does not extend to those deputies of county constitutional officers. The pivotal element here is simply the employer in the strict, statutory and practical sense. If the General Assembly wants to make the fiscal court responsible for all county employees, including constitutional officer deputies, it can easily do so. So far, it has not so provided.
Question No. 5:
"If fee office deputies are county employees, and the answer to Question 2 is 'Yes', is it the responsibility of fiscal court to see that they operate in accordance with an adopted county personnel policy in order to be an equal opportunity employer without discrimination?"
As we said above, the fiscal court is responsible for such programs, if adopted at all, to be uniformly applied to its own employees. If constitutional officers request the fiscal court to bring in their deputies under a uniform county system, it can then be done.
Question No. 6:
"If fee office employees are not county employees, and refuse to adhere to our county personnel policy, does fiscal court assume any liability regarding discrimination?"
We have covered this above. Fee office employees are county employees in a broad sense. However, their inclusion in a uniform program will simply require the request of their employer, the constitutional officer.
Any prior opinion of this office in conflict with this opinion is modified accordingly.