Request By:
Phillip R. Spangler, Director
Division of Local Health
Department for Health Services
Cabinet for Human Resources
Frankfort, Kentucky 40621
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Martin Glazer, Assistant Attorney General
You seek the opinion of this office as to whether or not local health department employees can qualify under KRS 18A.270 as employees of political subdivisions. You specifically state that your question is not whether they can qualify as "State employes."
As you have pointed out, such entities have already been held not to be state employees for deferred compensation purposes in OAG 76-89. Some are considered to be covered under the Kentucky Employes Retirement System, but that is accomplished by a specific statute (KRS 212.432, applicable to joint city-county health departments located in a county containing a city of the first class) and that has no effect on what system such employees are covered for deferred compensation purposes.
KRS 18A.270(1) and (2) provide:
(1) Any city, county, or other political subdivision or combination of these entities may establish for its employes a deferred compensation program. Participation shall be by written agreement between such employes and the legislative authority of the city, county, or other political subdivision providing for the deferral of such compensation and the subsequent investment and administration of such funds.
(2) Such subdivision, acting through its legislative authority, may appoint such agency or department as it deems appropriate to establish and administer a deferred compensation plan pursuant to KRS 18A.230 to 18A.275. For purposes of funding such agreements between the city, county, or other such political subdivision and the participating employes, the agency or department as designated by the legislative authority to establish and administer such plans may invest such funds in such investments deemed appropriate by said agency or department, including, but not limited to annuity contracts.
Therefore, in our view, employees of local health programs are either part of a city, a county, or other political subdivision or combination of these entities, depending upon the type of local health program that has been organized in the local area.
Since KRS 18A.270(1) requires the legislative authority of the city, county, or other political subdivision and the employees of the health entity to enter into an agreement, the nature of the health organization would need to be ascertained in order to determine what legislative authority must participate.
For example, if the health entity is merely a department of a city, the city council would be the legislative authority. If it is part of the county, the fiscal court is the legislative authority. If it is a separate health taxing district, the district board, itself, is the legislative body, or if it is a combination of these entities, the governing body of the combined entity would need to enter into the agreement.
Therefore, the nature of the local health agency will determine how and who must implement the local Public Employes Deferred Compensation Plan.