Request By:
Dr. Thomas C. Boysen
Commissioner of Education
Kentucky Department of Education Plaza Tower
500 Mero Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your letter of April 18, 1991, you requested the opinion of this Office on several questions concerning the reorganization of the Department of Education effective July 1, 1991.
Your first question pertains to KRS 156.016, which gives the Commissioner of Education the authority to reorganize the Department of Education. In particular, you ask whether a formal executive order complying with KRS 12.028 should be filed, and, if so, who must sign such an order to give it full legal effect.
It is the opinion of this Office that, although you are an appointed chief executive officer of the Department of Education, as Commissioner you have executive authority, unilaterally, to reorganize the Department, one time, under the mandate of KRS 156.016(3), which states:
The actions authorized by this section are designed for a single time use only in response to the education situation. Following July 1, 1991, your authority as Commissioner to reorganize the Department will be subject to the authority of the Governor under KRS 12.028. On July 1, 1991, while you have the authority to reorganize the Department, you may wish to file an executive order with the Legislative Research Commission to give notice of the organizational plan.
Ordinarily, the provisions of KRS 12.028 set the standard for reorganization of the executive agencies. KRS 12.028(1) authorizes the Governor and other elected state executive officers to propose to the General Assembly, for approval, changes in the organizational structure of state government. KRS 12.028 also provides for interim changes in organizational structure, upon executive order, filed by the Governor or other elected state executive officers between sessions of the General Assembly. A temporary reorganization plan is subject to review by the appropriate interim joint legislative committee, and must be ratified during the next session of the General Assembly in order to remain in place beyond a limited period of time. The Governor is not authorized to place in effect a temporary reorganization plan that would change the organizational structure of an agency headed by an elected state executive officer unless requested by that officer in writing. Nor may an elected state official change the organizational structure of any organizational unit or administrative body other than the one that he heads. KRS 12.028(2).
Until 1991, the Department of Education was under the supervision of an elected state executive officer, the Superintendent of Public Instruction. However, according to Sections 91 and 93 of the Kentucky Constitution, the duties of the Superintendent of Public Instruction are strictly defined by statute. KRS 156.010, which sets forth the duties of the Superintendent of Public Instruction, was amended in 1990 to provide that the duties listed therein would remain in effect only until January 1, 1991. KRS 156.010(12). In particular, effective January 1, 1991, the Superintendent of Public Instruction lost his authority to be the chief executive officer of the Department of Education, and therefore no longer has the authority to file executive orders for reorganization of the Department of Education. KRS 156.010(12).
In contrast, the Commissioner of Education was specially appointed effective January 1, 1991, under KRS 156.147 by the Education Management Selection Commission to carry out all duties assigned by law. KRS 156.148, KRS 156.010 and KRS 156.016. On January 1, 1991, the Commissioner of Education assumed the position of Chief Executive of the Department of Education and became responsible for most of the duties formerly granted to the Superintendent. KRS 156.010(13). Those duties include the particular reorganization of the Department of Education on July 1, 1991. While KRS 156.016 authorizes you as Commissioner to reorganize the Department of Education, in order to place the new organizational structure in effect, your filing an executive order or copy of the organizational plan would make known any or all of the organizational changes.
To the extent that KRS 156.016, which gives the power of reorganization to the Commissioner, is considered to conflict with KRS 12.028, which indicates that only the Governor or another elected state executive officer may file executive orders, clearly, KRS 156.010 and 156.016 supersede KRS 12.028 in that KRS 156.010 and 156.016 were enacted into law more recently than KRS 12.028 and more specifically address the reorganization of the
Department of Education. Schultz v. Schultz, Ky., 332 S.W.2d 253 (1960).
Second, you ask whether the provisions of KRS Chapter 18A are suspended on June 30, 1991, by KRS 156.016. In particular, you ask whether the Personnel Board retains jurisdiction to hear appeals from employees terminated under KRS 156.016.
This Office is of the opinion that merit employees may not appeal legislative terminations to the Personnel Board. In KRS 156.016, the General Assembly abolishes all employment positions in the Department of Education and terminates the employment of all employees in those positions, effective at the close of business on June 30, 1991. The Personnel Board has no jurisdiction over these actions of the General Assembly. Indeed, the Personnel Board is authorized neither to recreate the positions abolished by the General Assembly nor to reinstate employees whose employment has been terminated by the General Assembly. See KRS 18A.075.
Third, you ask whether a merit employee who has earned status before July 13, 1990, has a constitutionally vested substantive property right not to be terminated except for cause, a real or actual abolition of position, lack of work, material change in duties or organization, or a projected or actual reduction in tax receipts.
It is the opinion of this Office that a statutorily , not a constitutionally, created property right exists for state merit employees who hold status in their positions. That right entails protection from dismissal, demotion, suspension or penalization except for cause, but does not entail protection from legislative abolishment of their positions and termination. KRS 18A.095(1).
The U.S. Supreme Court has indicated that state law governs as to whether a property right, i.e., a right to continued employment, has been granted, which then invokes constitutional rights to adequate due process procedures prior to deprivation of that property right.
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). Under the criteria set forth in Loudermill , KRS Chapter 18A essentially grants a property right to merit employees who hold status in their positions as set forth in KRS 18A.095(1):
A classified employee with status shall not be dismissed, demoted, suspended or otherwise penalized except for cause.
However, the Sixth Circuit Court of Appeals has held that there is a material difference between a discharge for which cause must be shown and an action for which cause need not be shown::
Kentucky's statute provides that a discharge cannot take place absent cause. The Kentucky statute governing layoffs contains no requirement to show cause. It permits layoffs due to reorganization, lack of funds, or work, or the abolishment of positions. It is the cause element which confers upon the property right the imprimatur of constitutionality . Although plaintiffs may have had an expectation of continued employment it was a unilateral one and does not rise to the level of a constitutionally protected right.
Riggs v. Commonwealth of Kentucky, 734 F.2d 262 (6th Cir. 1984) cert. denied, 469 U.S. 857, 105 S. Ct. 184, 83 L. Ed. 2d 118 (1984). [Emphasis added.]
It is the opinion of this Office that while state merit employees hold a property right in their employment with the state to the extent that they may not be dismissed, demoted, suspended or otherwise penalized except for cause, there is no statutorily created property right that prevents legislative terminations from a particular agency because there is no statutory provision that provides that legislative terminations cannot take place absent cause.
For analysis of legislative repeal of property interests see
Gattis v. Gravett, 806 F.2d 778 (8th Cir. 1986). Addressing an Arkansas statute that terminated a property interest in employment previously conferred, the Court stated:
However, the legislature which creates a statutory entitlement (or other property interest) is not precluded by having done so from altering or terminating the entitlement by subsequent legislative enactment. The procedural component of the due process clause does not 'impose a constitutional limitation on the power of Congress to make substantive changes in the law of entitlement to public benefits.'
Gattis v. Gravett supra , at 780 quoting from
Adkins v. Parker, 472 U.S. 115, 105 S. Ct. 2520, 2529, 86 L. Ed. 2d 81 (1985) quoting from
Richardson v. Belcher, 404 U.S. 78, 81, 92 S. Ct. 254, 257, 30 L. Ed. 2d 231 (1971).
The Court of Appeals for the Eighth Circuit also relies on Accord
Jones v. Reagan, 748 F.2d 1331, 1338-39 (9th Cir. 1984) cert. denied, 472 U.S. 1029, 105 S. Ct. 3505, 87 L. Ed. 2d 636 (1985). There, the Supreme Court held that Congress' provision of free medical care for seamen did not create a "vested right" that could prohibit repeal.
Property rights to public benefits are defined by the statutes or customs that create the benefits. See, e.g.,
Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). When, as here, the statute authorizing the benefits is amended or repealed, the property right disappears.
Gattis v. Gravett, supra, at 780-781.
Finally the Court concludes:
Thus the legislature which creates a property interest may rescind it, whether the legislative body is federal or state and whether the interest is an entitlement to economic benefits, a statutory cause of action or civil service job protections.
Gattis v. Gravett, supra, at 781.
On what steps should be taken, the Court notes that while the legislative action may result in deprivation of a property right previously conferred, "the legislative process itself provide citizens with all of the 'process' they are 'due.'"
Gattis v. Gravett, supra, quoting
Adkins v. Parker, 472 U.S. 115, 105 S. Ct. 2520, 2529, 86 L. Ed. 2d 81 (1985).
Fourth, you ask whether seniority is a vested property right under KRS Chapter 18A. It is the opinion of this Office that seniority is not a vested property right under KRS Chapter 18A.
The property right is that right set forth, above, in 18A.095(1), not to be "dismissed, demoted, suspended or otherwise penalized except for cause." KRS 156.016 does not provide for seniority for purposes of termination of rehiring in the Department of Education . KRS 156.016(1). Nevertheless, seniority applies in all other agencies under the provisions of KRS 18A.135(2) in that all employees of the Department of Education are to be treated as career employees (with a minimum of sixteen years service) when placed on reemployment lists. KRS 156.016(1). "If more than one (1) career employe requests to be placed on the reemployment list for any job classification, the department [of personnel] shall list the names of such career employes in the order of their seniority. " KRS 18A.135(2). [Bracketed language added.]
Finally, you ask, assuming a previously conferred property right can be modified, whether KRS 156.016 is unconstitutionally arbitrary in view of the fact that the General Assembly did not alter substantive tenure rights of local school district employees. This Office does not view KRS 156.016 as modifying a right to employment with the State of Kentucky. Prior to and after enactment of the Kentucky Education Reform Act, employees of the Department have that right. Employees of the Department who experience termination have been provided with means to retain a position with the state insofar as is possible.
Even if KRS 156.016 were considered to modify a previously conferred property right, the courts in Kentucky have long held that the Fourteenth Amendment of the United States Constitution permits state discretion in enacting laws which affect some groups of citizens differently from others so long as the classification is based on grounds that are rationally related to a reasonable state objective.