Request By:
Hon. Robert L. Chenoweth
Bryan, Fogle and Chenoweth
121 Bridge Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter on behalf of the Franklin County School District, you requested an opinion from this Office on the construction of KRS 161.155(9) which was amended and re-enacted by the 1990 General Assembly as follows:
Any statute to the contrary notwithstanding, employees and teachers who transferred from the Department of Education to a school district, from a school district to the Department of Education, or from one (1) school district to another school district after July 15, 1981, shall recieve credit for any unused sick leave to which the employee or teacher was entitled on the date of transfer. This credit shall be for the purposes set forth in subsection (8) of this section.
You stated that an employee of one school district took a position in the Franklin County School District as "Public Relation Director." This position does not require certification, yet, you indicated that neither is the position generally considered to be "classified." When the employee became employed in the Franklin County School System, she applied to receive credit for the unused sick leave to which she was entitled under the terms of KRS 161.155(9). Her request was denied. You have asked this Office for an interpretation of KRS 161.155 as it applies to the facts set forth above. In particular, you ask whether the employee is entitled to credit for the sick leave accrued prior to transfer.
It is the opinion of this Office that employee is entitled to credit for the sick leave accrued prior to transfer in accordance with the terms of KRS 161 155(9). Subsection (9) of KRS 161.155, set forth above, was first enacted by the General Assembly as subsection (8) effective July 15, 1988. At that time, the subsection read as follows:
Any statute to the contrary notwithstanding, employes who transferred from the department of education to a school district, from a school district to the department of education, or from one (1) school district to another school district after July 15, 1981, shall receive credit for any unused sick leave to which the employe was entitled on the date of transfer. Such credit shall be for the purposes set forth in KRS 161.155(7).
(Emphasis added.) The term "employe," as defined by KRS 161.155(1)(b) in 1988 and at present refers to:
any person, other than a teacher, employed in the public schools, whether on a full or part-time basis.
To understand the application of subsection (8), it is necessary to look at the 1988 language of subsection (7) (now subsection (8)):
After July 1, 1982, a district board of education may compensate, at the time of retirement, an employe or a teacher for each unused sick-leave day. The rate of compensation for each unused sick-leave day shall be based on a percentage of the daily salary rate calculated from the employe's or teacher's last annual salary, not to exceed thirty percent (30%). Payment for unused sick-leave days shall be incorporated into the annual salary of the final year of service; provided that the member makes the regular retirement contribution for members on the sick-leave payment. The accumulation of such days includes unused sick-leave days held by the employe or teacher at the time of implementation of such a program.
You raise the additional question as to whether the current language of KRS 161.155(9) which indicates that the credit for sick leave is for the purposes set forth in subsection (7) really should refer to KRS 161.155(2). The statute, in its final form, refers to subsection (8). KRS 161.155 was repealed and reenacted in 1990 in Section 478 of House Bill 940. The statute was also amended by Section 4 of Senate Bill 35. As a result of the amendment, the last sentence of Subsection (9) reads, "This credit shall be for the purposes set forth in KRS 161.155(8)." Senate Bill 35 also amended KRS 161.155(9), effective July 13, 1990, to provide that credit for sick leave would pertain not just to employees, as defined in the statute, but also to teacher, as defined in the statute.
Finally, Subsection (1) of Section 653 of House Bill 940, passed by the General Assembly in 1990, reads:
If any provision of this Act repeals and reenacts a statute section amended by another act adopted at this 1990 regular session of the General Assembly, the repeal and reenactment by this act shall have no effect.
Therefore, the 1990 General Assembly amended KRS 161.155(9) to refer to (8), which is consistent with the wording of the statute when first enacted in 1988. Moreover, according to Section 653 of House Bill 940, the amendment of Senate Bill 35 expressly supersedes the repeal and reenactment of Section 478 of House Bill 940. Based on the legislative history, this Office finds no evidence that, instead of subsection (7), the General Assembly intended to refer to subsection (2). If the reference in 1988 to the paragraph on compensation at time of retirement had been in error, the General Assembly would have had the opportunity to correct it in 1990.
Also based on the legislative history set forth above, and based on the current statutory language of KRS 161.155(9), it is the opinion of this Office, that the employee in question qualifies to receive credit for any unused sick leave to which she was entitled on the date of transfer. In 1988, the General Assembly technically made the benefit available only to employees as only "employes" were included in KRS 161.155(9); teachers were included as of July 13, 1990. The position of "Public Relations Director" would clearly meet the statutory definition of employee. Accordingly, the employee is entitled to the sick leave days earned during her prior employment in another school district.