Request By:
Mr. Ben Rogers
Barren County Attorney
Barren County Courthouse
Glasgow, Kentucky 42141
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Brent L. Caldwell, Deputy Attorney General
This opinion is in response to your letter of March 28, 1990, regarding the application of those provisions of Chapter 78 of the Kentucky Revised Statutes which are concerned with the county employees civil service and retirement system. In particular, you question whether certain individuls working in your office are to be considered county employees and thereby required to be members of the retirement system. Apparently, the affected employees work in a division of your office which assists in the enforcement of child support as provided under Title IV-D of the Social Security Act. (See 42 USC § 651 et seq .) This portion of the federal act requires states to establish a child support enforcement plan in order to determine paternity of children born out of wedlock, assist with the locating of absent parents and obtain and enforce court orders for child support if the states wish to continue to receive federal funding for such programs as Aid for Dependent Children, etc.
In order to comply with this federal mandate, the Division for Child Support Enforcement located within the Cabinet for Human Resources was created. Under the Kentucky statutes and regulations, the Cabinet is authorized to take the necessary action to establish paternity in cases where children are born out of wedlock, obtain and enforce child support orders, etc. See KRS 205.712 et seq . In addition, the Cabinet may seek to enter into agreements with other agencies or individuals to see that these functions are carried out. The statute provides that the county attorney, at his option, is considered to be the designee of CHR for purposes of administering the program within a county. The program is funded in whole or in part from federal and state monies. In your particular instance, apparently no funding is provided by the Barren Fiscal Court for you to operate this program.
Another characteristic of the child support program established in your office is that the Barren Fiscal Court has, in the past, rejected an attempt to designate an employee with this program as a county employee. In other words, apparently the Barren Fiscal Court has no control over who is hired, fired, the amount of the employee's salary or their duties. Instead, all those determinations are left to your discretion. The question then becomes whether these individuals described above could be considered as an employee as that term is defined in KRS 78.510(6) to mean:
. . . every regular full-time appointed or elected officer or employe of a participating county and the coroner of a participating county, whether or not he qualifies as a regular full-time officer. The term shall not, except in the case of volunteer fire-fighters serving a fire district created pursuant to KRS 75.010, include persons engaged as independent contractors, seasonal, emergency, temporary and part-time workers. In case of any doubt the board shall determine if a person is an employe within the meaning of KRS 78.520 to 78.852.
In order to resolve this issue one must also review KRS 78.530(1) and 78.540, respectively. KRS 78.530(1) states:
Each county and school board as defined in KRS 78.510, will participate in the system by appropriate order authorizing such participation which has been entered and duly recorded in the records of the governing body of the county or school board. In cases where general purpose county government does not participate, but the sheriff and his employes or the county clerk and his employes do, tthe sheriff or the clerk shall retain the order in his office. The authority to issue and properly record such order of participation being hereby granted, permits such county to participate in the system. The effective date of such participation shall be fixed in the order.
KRS 78.540 states:
Membership in the system shall consist of the following:
(1) All persons who become employes of a participating county after the dte such county first participates in the system, except that mayors and members of city legislative bodies may decline to participate in the system and city managers or other appointed local government executives who participate in a retirement system other than social security, which operates in more than one state, may decline to participate in the system.
When interpreting Kentucky statutes, one follows the directives found in KRS 446.080(1) and (4) which require:
(1) All statutes of this state shall be liberally constued with a view to promote their objects and carry out the intent of the legislature, and the rule that statutes in derogation of the common law are to be strictly construed shall not apply to the statutes of this state.
. . . .
(4) All words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases, and such others as may have acquired a peculiar inappropriate meaning in the law shall be construed according to such meaning.
Another important rule of statutory construction to keep in mind is, ". . . that the enumeration of paticular things excludes other items which are not specifically mentioned." Smith v. Wedding, Ky., 303 S.W.2d 322 at 323 (1957).
In applying the above-stated principles to the issue described in your letter, it is the opinion of this office that the individuals working in the Child Support enforcement Division contained in your office are not to be considered as county employees for purposes of the couny employee retirement system.
The basis for this decision rests upon the belief that the workers described in your letter fail to meet the statutory requirements of Chapter 78 and some of he basic tests involved with determining if an individual is an employee of another. Some of these factors are the ability to hire and fire, establish salary, control the duties, the right to discipline, and the providing of equipment for the worker. See , Carnes v. Department of Economic Security, Ky., 435 S.W.2d 758 (1968).
In the fact situation described in your letter, the Barren Fiscal Court retains none of the above-described powers over those individuals employed in the Child Support Enforcement Division in your office. Indee, the Fiscal Court, at one point, refused to hire one of the workers as a county employee.
Another point to keep in mind is that the duties associated with the collection of child support and the programs operated by your office are assigned by statute to the Cabinet for Human Resources, not the county attorney. See , KRS 205.715. The Cabinet may contract with any individual they choose, although the county attorney stands first in line, in order to comply with the directives found in that section of Chapter 205.
Finally, KRS 78.540(1) requires that membership in the system shall consist of all persons who are employees of a participating county. As indicated in a previous number of statutes cited from Chapter 78, the important word to be defined here in "county." KRS 75.510(3) defines a county as:
Any county or sheriff and his employes or county clerk and his employes or political subdivision or instrumentality, including school boards, or urban county government participating in the system by order appropriate to its governmental structure, as provided in KRS 78.530, and provided the board is willing to accept such agency or corporation, the board being hereby granted the authority to determine the eligibility of such agency to participate.
The failure on the part of the General Assembly to have included any reference of the county attorney and his employees operates so as to eliminate that group from being included. This interpretation of the statute conforms with the generally accepted principle previously discussed that where cetain persons or things are identified as being controlled by he statute in question, those not specifically mentioned are excluded. Smith v. Wedding, supra.
Therefore, for the foregoing reasons, it is the opinion of this office that the employees as described in your letter are not to be considered as employees of Barren County for purposes of membership in the county employee retirement system.