Request By:
Honorable Robert N. Mead CPA
State Treasurer
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Martin Glazer, Assistant Attorney General
This is in reply to your request for an opinion as to whether constitutional officers are entitled to vacation pay over and above their base salary.
You specifically ask:
"1. Are Constitutional Officers entitled to vacation pay over and above their base salary, (as are other merit and non-merit employees), or is their salary inclusive of such vacation pay?
"2. If vacation pay is permitted for Constitutional Officials over and above base salary, is such vacation pay cumulative from year to year, and what are the maximum number of cumulative vacation days that may be paid upon leaving office."
3. Finally, you ask whether these officers can receive compensatory pay.
In 1976, a similar question was asked of parole board members and in a non-official opinion, we advised that in the absence of specific statutory authority, the payment of accumulated vacation pay was not authorized. We enclose a copy of that advisory (Exhibit A).
As a result of that advisory, the affected former parole board members filed suit. Both the Franklin Circuit Court and the Kentucky Court of Appeals agreed with the interpretation of this Office. We enclose a copy of the Court of Appeals' opinion (Exhibit B).
While the Court of Appeals' opinion was not a published one, its rationale and the reported cases set out therein hold for the rule that a public official is not authorized to receive accumulated annual leave payments unless such is specifically authorized by statute or regulation.
An elected state officer serves a term of office and receives compensation for doing so. The amount of hours he spends in performing that service does not affect his compensation either by increasing or decreasing same.
The statutory provisions for such offices contained in KRS Chapter 64 do not authorize additional compensation for sick leave, annual leave or compensatory time.
Therefore, the answer to Question No. 1 is that Constitutional Officers are not entitled to vacation pay over and above their base salary. They may take vacations without reduction in salary and are not entitled to additional compensation, either as vacation, sick or compensatory pay. The answer to No. 1 precludes the need to answer Questions 2 and 3.
EXHIBIT A
October 6, 1976
Mr. Arthur Hatterick, Jr., Deputy Commissioner, Department of Personnel, Frankfort, Kentucky 40601
Dear Mr. Hatterick:
You seek our advice as to whether a person who has served a full term as a State Parole Board Member is eligible to receive a lump sum annual leave payment.
If a Parole Board member is entitled to annual leave payment, it would have to be because of some statute or regulation authorizing same. Persons in state government are not entitled to compensation without statutory or regulatory authorization. The lump sum payment of annual leave for merit system employees is authorized first by KRS 18.210 which authorizes rules for the classified service. That statute sets out various subjects which the rules may contain. Subsection (18) authorizes rules for "annual, sick and special leaves of absence, with or without pay, or reduced pay after approval by the Governor . . . ." In conjunction with that statute, the Personnel Board has promulgated 101 KAR 1:140 § 2 dealing with annual leave. Subsection (9) thereof provides in part:
"Employes shall be paid in a lump sum for accumulated annual leave, not to exceed thirty (30) working days when separated by proper resignation, lay-off, retirement or when granted leave without pay in excess of thirty (30) working days. . . ."
Parole Board members are authorized by KRS 439.320 which provides that the Governor shall appoint a parole board consisting of five members. Subsection (2) of that statute provides that the board members shall receive necessary travel expenses and a salary to be determined pursuant to KRS 64.640(2) except the chairman shall receive an additional compensation of $1,000 per year for his services. Neither this statute nor KRS 64.640 authorizes specific annual leave or the payment for accumulated annual leave. KRS 18.220 provides that the Commissioner of Personnel shall prepare rules for the Governor's consideration for certain unclassified persons enumerated in paragraphs (f), (g), (h), (i), (j), (o), (t) and (u) of KRS 18.140(1). Subsection (1)(d) authorizes rules for annual, sick and special leaves of absence with or without pay, or reduced pay, after approval by the Governor. This language is similar to the rule for annual, sick and other leaves found in KRS 18.210(18) for classified personnel.
The persons enumerated in (f), (g), (h), (i), (j), (o), (t) and (u) of KRS 18.140 (1) are not those persons fitting the description of Parole Board members. Parole Board members would fit the description of employees enumerated in KRS 18.140(1)(c), to wit:
"Members of Boards and Commissions."
Therefore, it is clear that since Parole Board members are not members of the classified service and they are not those nonclassified positions which are authorized annual leave, there is no statutory provision for the payment of accumulated, annual leave for Parole Board members and therefore, they are not eligible to receive a lump sum annual leave payment.
Very truly yours,ROBERT F. STEPHENS, ATTORNEY GENERALBy: Martin Glazer, Assistant Attorney General
EXHIBIT B
NO. 80-CA-670-MR
CHARLES G. WILLIAMSON, JR. and LUCILLE G. ROBUCK APPELLANTS v. APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE HENRY MEIGS, II, JUDGE CIVIL ACTION NO. 88363 COMMONWEALTH OF KENTUCKY, DEPARTMENT OF JUSTICE, ROBERT F. STEPHENS, ATTORNEY GENERAL OF KENTUCKY, and ADDIE STOKLEY, COMMISSIONER OF PERSONNEL APPELLEES
AFFIRMING
BEFOR: COOPER, LESTER and WINTERSHEIMER, Judges.
LESTER, JUDGE. This is an appeal in a declaratory judgment action wherein appellants, former members of the Parole Board, sought payment for accrued leave time which time was never taken by them. The circuit court denied the relief sought.
Charles Williamson and Lucille Robuck became members of the Parole Board on July 1, 1972, and the former served in that capacity until August 13, 1976, while the latter until August 19, 1977. During their tenure, these appointed officers were advised that they were allowed one to one and a half days per month annual leave depending upon their length of service for which they were furnished annual reports reflecting end-of-the year balances. Appellants did not use all of their leave and at the end of their service, Williamson had accumulated thirty days while Robuck had thirty-five.
It is undisputed that since the position became full-time in 1956 that board members had been paid their salary for accrued annual leave at the time of their severance, but in the case of appellants, the office of the Attorney General advised that such action was unauthorized by the personnel statutes so this action was brought for a declaration of rights.
The applicable statutes effective during the period under consideration are KRS 439.320(4) providing in part:
The members of the board shall give full time to the duties of their office and shall receive necessary travel expenses and a salary to be determined pursuant to KRS 64.640(2).
and KRS 64.640(2) which requires in part:
The governor shall set the compensation payable out of the state treasury to each officer or position in the state service, which officer or position heads a statutory administrative department, independent agency, or other unit of state government except for those excluded under subsection (1).
Thus, we find the authority for payment to the appellants of their salary and expenses, but nothing more. A search of the statutes finds provisions for annual, sick and special leaves with or without pay at KRS 18.210(18) but only for those within the classified service or merit system, but appellants do not fall within that category because by the terms of KRS 18.140, effective in 1976-1977, and more specifically subsection (c), they are excluded therefrom. If the litigants are to attain their purpose, they must do so as unclassified personnel which is authorized by KRS 18.220, but this last cited statute only allows the commissioner of personnel to submit for gubernatorial approval regulations for annual, sick and special leaves for six classes of employes enumerated in KRS 18.140 which again does not cover members of boards and commissions. We are fully aware that the 1978 General Assembly did make provision for those situated as are appellants, but this change was not effective until June 17, 1978, which was subsequent to their service. Based upon the foregoing, we can only conclude that if appellants were authorized to receive payment for accrued leave, then it would have to been set by order of the governor, but there is nothing appearing of record indicating that this was done.
The former board members argue that KRS 439.320(2) and 64.640(2) by implication include the authority to fix a salary and "provide for leave time", but even if such a construction could be applied the fact remains that no one having the authority provided for payment of leave time not taken.
There is little precedent in this jurisdiction dealing with the prime issue of this litigation, but we note that as early as 1880 the principle was enunciated that "[a]n officer is not entitled to compensation for official services rendered by him unless there is a law which specifically gives him a fee or salary. " James Bridgeford & Co. v. George W. Newman, 10 Ky. Opin. 950, 952 (1880). In Overstreet v. Boyle County Fiscal Court, 264 Ky. 761, 95 S.W.2d 584 (1936), the court approved the rule set forth in 46 C.J. § 250 at 1019 to the effect:
Statutes relating to the fees and compensation of public officers must be strictly construed in favor of the government and such officers are entitled only to what is clearly given by law.This position was reaffirmed the following year in Land v. Fayette County, 269 Ky. 543, 108 S.W.2d 429 (1937).
Turning to the factual element of accrued leave, we note that the right thereto by way of compensation for unused accumulations upon termination of service is dependent on statute, 81A C.J.S. States, § 106 at 513, and in the present case, we have no such express provision, so under the rule of strict construction, we hesitate to adopt the "by implication" argument.
This jurisdiction, by way of dictum, in Rawlings v. City of Newport, 275 Ky. 183, 121 S.W.2d 10 (1938), frowns upon the practice of public officials being paid for unused vacation time as does Washington in State ex rel Bonsall v. Case, 172 Wash. 243, 19 P. 2d 927 (1933), wherein the court concluded:
If this could be done, it would be, in effect, the giving to the employee of a gratuity or bonus in addition to his regular salary which he agreed to accept at the time the employment or service began.Interestingly enough, there was a statute in the State of Washington providing for vacation with pay while in this case, there is no such enactment. For another interpretation of a vacation with pay law see State ex rel Sweeney v. Donahue, 12 Ohio St. 2d 84, 232 N.E. 2d 198 (1967). As to the right of an elected official to be paid for accumulated leave time, see Koontz v. State, 90 Nev. 419, 529 P. 2d 211 (1974).
Appellants further urge that the time for which they seek compensation ". . . is all earned and it is all due", but this overlooks the facts that they were paid their respective salaries but they failed to take time off from their work. Reliance upon the fact that former board members were paid for the leave does not now bring such additional remunerations within the framework of the law.
The final contention of appellants revolves around the 1978 revision of KRS 18.220(2) which provided for payment for accrued annual leave. Based upon the long standing practice of compensating for such leave, the former board members urge that the amendment was clarifying in nature and that it "only denied that the personnel statutes mandatory for most positions, were impliedly prohibitionary to parole board members." We disagree. The legislature did not provide for a retroactive application of the statute for if this was one of the desired effects, it certainly could have done so. True enough, the first phrase of the statute says "[n]othing herein shall be construed to preclude the optional use of rules promulgated under this section on behalf. . ." of members of state boards, but it does not provide that such rules should be applied retroactively. If the legislative body had that in its collective mind, it would have so provided.
The appellee, to some extent, relies upon § 230 of the Kentucky Constitution and the reasoning of Matthews v. Ward, Ky., 350 S.W.2d 500 (1961), but we find no merit in these authorities for the constitutional section deals with money to be drawn from the state treasury based upon appropriations made by law and the case centers around a contractual provision for the payment of lump sum moving expenses of a highway department employee, so accordingly, for the reasons set forth in this opinion, the judgment is affirmed.
Nothing contained herein should be construed as having application beyond the circumstances of this particular case.
ALL CONCUR.
ATTORNEY FOR APPELLANTS: Hon. George F. Rabe, 1004 First National Building, Main and Upper Streets, Lexington, Kentucky 40507
ATTORNEYS FOR APPELLEES: Hon. Steven L. Beshear, Attorney General
Hon. Martin Glazer, Assistant Attorney General, 120 Capitol Building, Frankfort, Kentucky 40601