Request By:
Thomas C. Greenwell
Commissioner
Department of Personnel
Room 373
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; Anne E. Keating, Assistant Attorney General
In your recent letter you requested a formal opinion from the Attorney General as to whether the Chairpersons and Members of the Boards and Commissions listed in your letter are entitled to an annual increment under KRS 18A.350 through 355 in addition to the compensation fixed by the Governor or by statute. The Boards and Commissions at issue include:
1. Workers' Compensation Board2. Real Estate Commission3. Board of Claims and Crime Victims Compensation Board4. Kentucky Board of Tax Appeals5. Parole Board6. Kentucky State Board of Chiropractic Examiners7. Board of Elections8. Athletic Commission9. Kentucky Occupational Safety and Health Review Commission.
The Department of Personnel has interpreted these statutes as exempting the Board and Commission incumbents from the annual increment provisions of KRS Chapter 18A.
First it is necessary to examine the statutes under which the Boards and Commissions listed have been established to determine how compensation is to be set for members of the different boards.
1. The Workers' Compensation Board is created pursuant to KRS 342.215. Under Subsection (2) the Board shall consist of three members appointed by the Governor. Under Subsection (3) the Board Members shall receive the same salary as appeals court judges. Under KRS 64.485 the salary of each judge of the Court of Appeals shall be $ 47,000, with the exception of the Chief Judge, and the statute provides for an adjustment for the increase or decrease in the consumer price index with a maximum annual increase of five percent. Under KRS 12.020 II ll.(f) the Workers' Compensation Board is located in the Labor Cabinet of the Executive Branch.
2. The Kentucky Real Estate Commission is created under KRS 324.281. The Governor shall appoint five persons. Under KRS 324.283 each member of the Commission shall receive as compensation $ 15,000 per annum and actual and necessary expenses incurred in the performance of duties pertaining to the office. This Commission is not expressly mentioned in KRS 12.020. However, that statute is not all inclusive and this Commission would be in the Executive Branch.
3. The Crime Victims Compensation Board is created under KRS 346.030 and consists of five members appointed by the Governor. The Governor shall establish the compensation of the members of the Board under KRS 64.640. Under Subsection (2) of KRS 64.640 "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) of this section. Such compensation shall be based upon studies of the duties and responsibilities and classification of the positions by the Governor and upon a comparison with compensation being paid for similar or comparable services elsewhere, provided, however, such compensation shall not exceed the amount provided for compensation to the Governor in KRS 64.480, the provisions of KRS 64.660 to the contrary notwithstanding." This statute does not address increments.
The Board of Claims is composed of the members of the Crime Victims Compensation Board and under KRS 44.070 the members shall not be entitled to additional compensation for their services on the Board of Claims.
These two boards are located in KRS 12.020 II 6.(k) of the Executive Branch of the Public Protection and Regulation Cabinet.
4. The Kentucky Board of Tax Appeals is established under KRS 131.315 Subsection (1) and consists of three members appointed by the Governor. Under KRS 131.320 members shall receive an annual salary to be fixed by the Governor. The Kentucky Board of Tax Appeals is also located in the Public Protection Cabinet and listed in KRS 12.020 II 6.(m).
5. The Parole Board is created under KRS 439.320 Subsection (1). The Governor appoints a board of seven members, one becoming chairman. Under Subsection (3) the salary is set by the Governor under KRS 64.640 Subsection (2) as described above under Number 3. This Board is located in the Executive Branch in the Corrections Cabinet under KRS 12.020 II 10.(a).
6. The Kentucky State Board of Chiropractic Examiners is created under KRS 312.025 and consists of five members appointed by the Governor. Under KRS 312.055 Subsection (2) members receive travel money and per diem of $ 35 a day.
7. The Board of Elections is created under KRS 117.015 and consists of six members appointed by the Governor. Under Subsection (4) "The members of the Board shall be paid a reasonable sum to be fixed by the commissioner of personnel, with the approval of the secretary of the Finance and Administration Cabinet, and in addition, their expenses in attending board meetings. This board is located in the office of state and is listed in KRS 12.020 I 3.(b).
8. The Athletic Commission was established under KRS 229.151 and consists of 5 members appointed by the Governor. The Commission shall have one member designated as chairman and one as vice chairman, and the compensation of chairman, vice chairman and other members of the Commission shall be fixed in the same manner as is provided by KRS 64.640(2). See paragraph 3, above. Also, the chairman, vice chairman and other members of the Commission shall receive $ 25 per day for each meeting attended and shall be paid their actual and necessary traveling and other expenses incurred by them in the performance of their official duties . . . . Under KRS 229.250 costs and expenses of administering the chapter, including compensation to members of the Board and its officers and employees, shall be paid out of the State Treasury on warrants of the Secretary of Finance providing expenses not exceed fees and charges collected by the board and available in the revolving or trust and agency fund account of the Commission . . . .
9. The Kentucky Occupational Safety and Health Review Commission was established under KRS 338.071 and consists of three members appointed by the Governor. Under subsection (6), the members of the commission shall be paid a salary fixed under KRS 64.640. See paragraph 3, above, for more information on that statute.
The Department of Personnel has evaluated these statutes on the establishment of the Boards and Commissions in question, and on compensation for board members in light of personnel statutes that came into effect July 15, 1982, KRS 18A.350, KRS 18A.355, and KRS 18A.360.
KRS 18A.350 Definition of employe
As used in this Act, 'employe' means any officer or employe of the executive branch of government. The provisions of this Act do not apply to employes of the general assembly, the legislative research commission, or the Court of Justice, or to any constitutional officer.
KRS 18A.355 Salary increment to be included in budget. (1) An annual increment of not less than five percent (5%) of the gross annual salary or wages of each state employe shall be granted to each employe(2) The biennial budget report submitted to the general assembly under KRS 45.040 shall include a request for the amount of the annual increment expressed as a percentage of each employe's gross salary or wages and a request for the total appropriation needed to fund the annual increment. The annual increment shall be uniform for all employes. The financial plan enacted under the provisions of KRS 45.050 shall contain the annual increment expressed as a percentage of each employe's gross salary or wages, and the total appropriation needed to fund the annual increment.
KRS 18A.360 Increase or reduction of annual increment
(1) When the general assembly is not in session, the annual increment may be increased or decreased as provided by this section.
(2) Any increase or reduction in the annual increment shall be uniform for all employes.
(3) An increase or reduction in the annual increment shall be approved by the secretary of the personnel and management cabinet, the commissioner of the department of personnel and the secretary of the department of finance.
(4) A reduction in the annual increment may be made if the secretary of the department of finance determines that the financial condition of state government requires such a reduction.
The statute was amended in 1984, but not in a way material to the issue at hand. Copies of the subsequent versions will be attached to this letter. In 1986, KRS 18A.355 was amended to read:
1) An annual increment of not less than five percent (5%) of the base salary or wages of each state employe shall be granted to each employe on his anniversary date. The employe's base salary or wages shall be increased by the amount of the annual increment. When any increment due to a promotion, reallocation, reclassification or salary adjustment is granted an employe, the employe's base salary or wages shall be increased by the amount of such increment. An employe's base salary or wages shall not be increased by the amount of lump-sum payment awarded under the provisions of KRS 18A.112 awarded him . . . .
A copy of the complete statute with the amendments will be attached to this letter.
To date, the Department of Personnel staff have interpreted the particular statutes on boards and commissions listed in the letter above as exempting the incumbents of boards and commission from the annual increment provisions of KRS Chapter 18A. Upon review of the statutes on the boards and commissions in question, as well as of KRS 18A.350 and KRS 18A.355 and KRS 18A.360, this office concludes that the incumbents of positions on the boards and commissions listed are included under the language of KRS 18A.350 which defines employe as any officer or employe of the executive branch of government. That statute lists specific exemptions; however, the positions in question do not fall under any of the exemptions. Therefore it would appear that the members of the boards and commissions addressed in this letter are eligible for annual increments. It is entirely possible that this was not the intent of the legislature, especially with regard to the members of the Workers' Compensation Board which indexes compensation to the salaries of Appeals Court judges. Under KRS 64.485 Appeals Court Judges already receive a cost-of-living adjustment which would approximate the same amount as an increment.