Request By:
Mr. A. Jack May, Director
Administrative Division
Criminal Justice Training
Kentucky Justice Cabinet
Kit Carson Drive
Richmond, Kentucky 40475-3131
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter your requested an opinion of the Attorney General interpreting KRS 18A.202 on work related incentive programs for state employees. You point out that under that statute the Commissioner of Personnel is authorized to develop work related incentive programs for state employees and to implement those programs by administrative regulation. You note that the state has implemented two employee incentive programs by administrative regulation; those include the employee suggestion system and a lump-sum educational-achievement award, 101 KAR 2:120 and 101 KAR 2:030 Section 6, respectively. Your particular inquiry is whether the tuition assistance and tuition reimbursement programs set forth on pages 47-48 of the State Employee Handbook are legally implemented programs based on your understanding that neither the Department of Personnel nor any other state agency has implemented a regulation concerning tuition assistance or tuition reimbursement. Therefore, you ask whether a state agency legally may grant tuition assistance or tuition reimbursement to a state employee.
It is the Opinion of this Office that a state agency legally may grant tuition assistance or tuition reimbursement to a state employee based on KRS 164.357 which gives authority for coordination, implementation, and approval of training and employee development programs to the Governmental Services Center.
A preliminary issue essential to your inquiry concerns which state agency has authority over the tuition assistance and tuition reimbursement programs. In order to understand the current administration of educational assistance programs, it is necessary to review the steps taken which resulted in tuition assistance and reimbursement.
The tuition assistance and tuition reimbursement programs were first authorized by personnel statutes now codified in Chapter 18A of the Kentucky Revised Statutes. KRS 18A.030 entitled "Duties of commissioner," provides, in part:
(2) Subject to the provisions of this chapter and KRS Chapter 13A , the commissioner shall, with the aid of his staff:
(i) Prepare, in cooperation with appointing authorities and others, programs for employee training , safety, morale, work motivation, health, counseling, and welfare, and exercise leadership in the development of effective personnel administration within the several departments of the Commonwealth, and make available the facilities of the department to this end.
(Emphasis added.)
In addition, KRS 18A.110 sets forth the regulatory authority of the Commissioner of Personnel, and states in part:
(7) The administrative regulations shall provide:
(k) [f]or the development and operation of programs to improve the work effectiveness of employees in the state service, including training, whether in-service or compensated educational leave , safety, health, welfare, counseling, recreation, and employee relations.
(Emphasis added.)
In fact, the Department of Personnel has promulgated two (2) regulations concerning, in part, the tuition assistance and reimbursement programs. 101 KAR 2:100 Section 7(2) provides:
An appointing authority, with approval of the commissioner,k may grant leave of absence when requested by an employee for a period not to exceed twenty-four (24) months, with or without pay for assignment to and attendance at college, university, vocational or business school for the purpose of training in subjects related to the work of the employee and which will benefit the state service.
The Department has also promulgated 101 KAR 2:035 Section 5(1) which states:
Section 5. Educational Achievement Award. The participation of an appointing authority in the program for educational achievement awards is contingent upon adequate funding, to be determined by the appointing authority through the budgetary process, for all eligibles within the agency. Upon request of the appointing authority and subject to the approval of the commissioner, a permanent employee, with status may receive one (1) lump sum educational achievement award per fiscal year:
(1) For satisfactorily completing outside of work hours 260 classroom hours (or the equivalent as determined by the commissioner) of job related instruction in approved courses. Approved courses, must have been completed after a merit employee initially gained permanent status in state government. Employees shall not receive credit for courses taken while on educational leave, for hours paid for by the agency through tuition assistance , or for courses which previously counted toward an educational achievement award. The lump sum educational achievement award shall be ten (10) percent of the employee's annual base salary but not more than $ 2,500. The lump sum payment shall be granted only if the 260 classroom hours (or equivalent) have been completed within the past five (5) years prior to the effective date of the increase;
. . . .
(Emphasis added.)
Until 1981, the Department of Personnel provided educational assistance to state employees through the Employment Services Division. On January 30, 1981, by Executive Order 81-112, Governor John Y. Brown modified the organizational structure of state government and created the Department of Career Training and the Department of Personnel in the new Personnel and Management Cabinet. The Department of Career Training was to be headed by a Commissioner and have the authority to develop and implement policy for all education and training programs. The Order became effective February 1, 1981.
Effective December 16, 1981, by Executive Order 81-1028, Governor Brown further modified the organizational structure of the Personnel and Personnel and Management Cabinet. The Department of Finance and the Management Cabinet were merged into the Finance and Administration Cabinet which included, inter alia, the Department of Personnel. The Department of Personnel included, inter alia, the Division of Career Training.
An additional modification in the organizational structure occurred effective September 1, 1982, when Governor Brown signed Executive Order 82-688, creating the Governmental Services Center at Kentucky State University. This was a separate administrative body of state government, attached to the Finance and Administration Cabinet for administrative purposes. The Center replaced the Division of Career Training and assumed all functions and duties of the Division, as well as new ones. By Personnel Memo 82-40, the Commissioner of Personnel outlined the transfer of the Educational Assistance Programs to the Governmental Services Center located at Kentucky State University. The policies of the Educational Assistance Program (which include the tuition assistance and reimbursement programs) are still in effect today.
Finally, effective July 13, 1984, KRS 164.357 codified the establishment of the Governmental Services Center at Kentucky State University, attaching the Center to the Finance and Administration Cabinet for administrative purposes. Subsection three (3) sets forth the mandate as follows:
The governmental services center at Kentucky State University, under direction of the [governmental services center] authority, shall be responsible for the development, coordination, content, approval and implementation of all training, employe development, and related programs conducted for and on behalf of all program cabinets, departments, administrative bodies and program managers of the state government . The center shall conduct, or cause to be conducted, ongoing management training programs for all program managers and supervisors within the executive branch of state government. The organizational units whose supervisors and managers received training at the center shall share the cost of the training on a pro-rata basis. The center shall encourage the enrollment of state employees in academic courses and programs at Kentucky State university . If desired academic courses are not available at the university, and cannot feasibly be developed at the university, other universities and community colleges within the Commonwealth shall be utilized. The authority shall determine the appropriate means of all such programs.
(Emphasis added.)
Since 1984, the Governmental Services Center has remained affiliated with the Finance and Administration Cabinet for administrative purposes. The Center has continued to implement policies and procedures transferred from the Department of Personnel by Personnel Memo 82-40 and to inform state employees of the steps to follow in applying for tuition assistance or tuition reimbursement.
Clearly, the Governmental Services Center now has authority to administer the tuition assistance and tuition reimbursement programs as the Center is, "responsible for the development, coordination, content, approval and implementation of all training, employe development and related programs conducted for and on behalf of all program cabinets, departments, administrative bodies and program managers of the state government. " KRS 164.357. While Personnel Statutes KRS 18a.030 and 18A.110 also address training programs, it is a basic rule of statutory construction that when more than one statute address a particular topic, the more specific statute prevails over the more general one. Heady v. Commonwealth, Ky., 597 S.W.2d 613 (1980). Accordingly, here, where the Governmental Services Statute more specifically addresses employee educational development programs, KRS 164.357 prevails over KRS 18A.030 and 18A.110.
An additional issue concerns whether it is legally required that the Governmental Services Center promulgate regulations implementing the policies and procedures that the Center now administers. KRS 13A.100 sets forth matters to be prescribed by administrative regulation, and appears to require that policies and procedures that implement laws be promulgated in the form of administrative regulations. However, only those agencies which are empowered to promulgate administrative regulations may do so. KRS 13A.100. No statutory language in KRS 164.360 or elsewhere so empowers either the Governmental Services Center or the governing body, Governmental Services Center Authority. Moreover, while the Governmental Services Center is attached to the Finance and Administration Cabinet for administrative purposes, we find no statutory authority for the Cabinet to promulgate a regulation on the tuition assistance and reimbursement programs. Therefore, until the General Assembly provides additional guidance in this area, we conclude that KRS 164.360 provides sufficient authority for tuition assistance and reimbursement programs to continue under the Governmental Services Center.
You also ask if the tuition assistance and tuition reimbursement programs are permissible under the law, what, if any, are the limitations to such assistance. The Department of Personnel and the Governmental Services Center have issued guidelines on the implementation of the two programs. These may be obtained in quantity from Governmental Services, Carroll Academic Services Building, Kentucky State University, Frankfort, Kentucky 40601, telephone number (502) 564-8170. However, we have attached one copy of the guidelines for your information.