Request By:
Mr. Don R. McCormick, Commissioner
Department of Fish and Wildlife Resources
Arnold L. Mitchell Building
#1 Game Farm Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
You have requested a formal opinion of the Attorney General in response to the following questions:
Can an agency of state government compensate an employee of the same cabinet but a different department for work done for said agency on the employee's own time?
Can an agency of state government compensate an employee who works for a cabinet outside of that agency's cabinet for work done for said agency on the employee's own time?
Can an agency of state government compensate its own employee for work done for that agency on the employee's own time for work which is outside that employee's job description?
The answers to these questions are interrelated. Under particular circumstances, it is possible for an agency to compensate an employee of that agency or of another state agency within or outside of the same cabinet for services rendered. The personnel regulations provide for several possibilities, and do not preclude mutual agreements between agencies.
Personnel regulation 101 KAR 2:095 Section 2 authorizes the appointing authority to change the work station of an employee, as needed, to meet the needs of the agency. The assignment may be within or outside of the county.
Section 3 of the same regulation provides for dual employment of state employees. An employee who works full-time for the Commonwealth may hold another state position provided that the appointing authority recommends the secondary employment, and the Commissioner of Personnel approves the request.
Personnel regulation 101 KAR 2:075 Section 2 authorizes the appointing authority, upon prior approval of the Commissioner of Personnel, to assign the services of a permanent employee to a different position within the agency for up to a year.
Under KRS 12.060(1), the appointing authority sets the duties and responsibilities of employees under his supervision. While each state employee occupies a position that is classified based on his duties and responsibilities, the duties do not limit the ability of the appointing authority to add to, delete or otherwise change the duties of a position. 101 KAR 2:020 Section 1 (3).
Applying these standards to the first question presented, if an employee works full-time for a department within a particular cabinet, he may obtain dual employment, on his own time, with another department within the same cabinet upon recommendation of the appointing authority and approval of the Commissioner of Personnel. 101 KAR 2:095 Section 3. In that circumstance, the agency for which the employee performs the secondary duties would be responsible for compensating the employee for those duties.
In answer to your second question, again, if the employee works for a state agency full-time, he may only work for a second state agency, on his own time, inside or outside of the cabinet, upon the recommendation of his appointing authority and approval of the Commissioner of Personnel. The agency for which the employee performs the secondary duties would be responsible for compensating the employee for those duties.
In answer to your third question, an agency of state government may compensate its own employee for work done for that agency which is outside of that employee's usual duties, and outside of the normal work hours under particular circumstances. The appointing authority may change or add to an employee's normal duties. KRS 12.060 (1) and 101 KAR 2:020 Section 1 (3). Moreover, the appointing authority may authorize accrual of overtime or compensatory leave as set forth in 101 KAR 2:100 Section 4.
In addition to these approaches, based on past practice, agencies have the ability to enter into agreements of mutual benefit. For example, during the implementation of changes in the personnel system, employees from several agencies assisted the Department of Personnel while continuing to remain employees of the agencies of origin. When an assignment is for an extensive period of time, interaccounting procedures may be appropriate.
While our response may provide you with information on possibilities for reassignment of personnel for the benefit of the appointing authority or for the mutual benefit of state agencies, for assistance with particular situations, we suggest that you consult with the Department of Personnel.