Request By:
Hon. David Ashley, General Counsel
Justice Cabinet
Second Floor Bush Building
403 Wapping Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
You have requested an opinion from this office interpreting personnel regulation, 101 KAR 3:045 Section 4, on outstanding merit increases. Specifically, you ask whether a particular employee of the Justice Cabinet is eligible for an outstanding merit increase. The employee in question was employed as Assistant County Attorney under the Unified Prosecutorial System from June 1, 1985, until September 15, 1988, then resigned and was reappointed without a break in service to an unclassified position as Principal Assistant II in the Justice Cabinet.
Personnel regulation, 101 KAR 3:045 Section 4, states in part:
(1) Subject to the approval of the commissioner and contingent upon the availability of sufficient budgeted funds, an appointing authority may within his sole discretion, recommend any full-time, unclassified employee whose service credit began prior to July 1, 1987 with at least twelve (12) months continuous service for an outstanding merit increase equal to three (3) percent of his base pay. An outstanding merit increase shall consist of a lump sum payment which shall not be added to base pay.
It is the opinion of this office that the employee in question is eneligible for an outstanding merit increase under 101 KAR 3:045. In order to qualify for "service credit, " as the phrase is applied under KRS Chapter 18A and accompanying regulations, it is necessary for a state employee to accrue annual leave. Classified employees accrue annual leave and service credit under 101 KAR 2:100 Section 1. The Personnel Regulation governing accrual of annual leave by unclassified employees is 101 KAR 3:010 Section 1. The prefatory language states:
KRS 18A.155 requires the Commissioner of Personnel to submit to the Governor proposed administrative regulations for the unclassified service persons in positions enumerated in KRS 18A.155 [This should be KRS 18A. 115 as indicated in KRS 18A.155(1).] (1)(g), (h), (i), (j), (k), (p), (u) and (v). KRS 18A.[115] further provides that these regulations shall be approved by the Governor. In practice, the leave regulations (101 KAR 2:100) which apply to merit system employees in the following specific areas have also been applied to the aforementioned categories of employees in the unclassified service.
"County and Commonwealth's attorneys and their respective appointees, " exempted from the classified service in KRS 18A.115(1)(w), do not fall under any of the enumerated categories listed in the introduction to 101 KAR 3:010.
KRS 18A.115 designates various categories of employees as unclassified, including members of the executive department of state government (e.g., division director in (i)), members of other departments of state government (e.g., legislative and judicial departments in (a) and (1)), as well as employees of entities outside of state government (e.g., state universities in (m)).
County attorneys and their appointees are also classified differently under various sections of the Kentucky Constitution and under various statutes for different purposes. Under Section 99 of the Kentucky Constitution, a county attorney is considered to be a county officer. This office has also opined that an assistant county attorney is a statutory county officer when considering the question of incompatibility of offices under KRS 161.080. OAG 80-341.
At the same time, the courts have noted that: "[S]ection 99 of the Kentucky Constitution places county attorneys under the heading 'Executive Department. '" Dugger v. Off 2nd, Inc., Ky. App., 612 S.W.2d 756 (1981). Other officers for districts and counties who are listed under the Executive Department in sections 97-99 of the Kentucky Constitution include commonwealth attorneys, circuit court clerks, justices of the peace, constables, sheriffs, and jailers, among others. Nevertheless, county offices have never come under the purview of Chapter 18A of the Kentucky Revised Statutes.
You point out that KRS 61.510(10) defines "current service," and indicates that any employment subsequent to July 1, 1956, is credited to the employee for the purposes set forth in the retirement statute, unless the context requires otherwise. For the purpose of eligibility to participate in Kentucky Employees Retirement System, "employee" is defined to include, in part, "every regular full-time appointed or elective officer or employee of a participating department . . . . KRS 61.510(5). Yet "department" includes "any state department or board or agency participating in the system in accordance with appropriate executive order, as provided in KRS 61.520. . . ." KRS 61.510(3). Therefore, membership in the Kentucky Employees Retirement System is not necessarily parallel with those entities covered by KRS Chapter 18A.
Under KRS 15.700-770, the Unified and Integrated Prosecutor System provides for "supervision of criminal justice by the attorney general as chief law enforcement officer of the Commonwealth, in order to maintain uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the Commonwealth." KRS 15.700. The Prosecutors Advisory Council was established to administer the Unified Prosecutorial System. KRS 15.705. Nevertheless, while assistant county attorneys are appointed with the approval of the Prosecutors Advisory Council, salaries are merely "comparable with the classification and compensation plan for comparable positions maintained by the state department of personnel, pursuant to KRS 64.640;" not synonymous with them. KRS 15.770(5).
Neither by regulation nor by past practice has any employee in the Unified Prosecutorial System received annual leave under the system provided for in Chapter 18A or service credit under Chapter 18A. Employees of the uniform prosecutorial system are appointed by elected officials who determine what, if any, annual leave and sick leave shall be available to employees. At present, no standardization of annual leave and sick leave exists for employees of the Unified Prosecutorial System.
To summarize, assistant county attorneys are county employees when hired by an elected county attorney to work for the county, despite their affiliation with the Unified Prosecutorial System for the purpose of uniform enforcement of criminal law and administration of criminal justice. They are not subject to the provisions of KRS Chapter 18A on compensation except to the extent that KRS 15.770 requires that salaries established by the Prosecutors Advisory Council be commensurate with guidelines comparable with the classification and compensation plans maintained by the Department of Personnel. Assistant county attorneys do not receive annual leave and sick leave under the provisions of KRS Chapter 18A and the accompanying regulations. Therefore, they are not eligible for service credit under KRS Chapter 18A, without statutory amendment.
In order to qualify for an outstanding merit increase under KRS Chapter 18A and 101 KAR 3:045(1), an unclassified employee must have accrued service credit prior to July 1, 1987. Based on the facts that you present, the employee did not begin to accrue service credit under the provisions of KRS Chapter 18A until September 15, 1988. Therefore, he is ineligible to receive an outstanding merit increase under the terms of 101 KAR 3:045.