Request By:
Mr. Wendell Cave, Director
Unit of Science and Human Development
Kentucky Department of Education
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your letter to this office you requested an opinion on the rights of employees of the Department of Education as of June 30, 1991, when, according to statute, all positions in the Department of Education are to be abolished and employment of all Department of Education employees terminated. This office has forwarded your letter to the Commissioner of Personnel for attention to the first three questions which deal with areas under the regulatory authority of the Commissioner of Personnel such as sick leave, retirement credit, and health insurance. This office will answer the other two questions that you raise:
4. Does HB 940 remove all protection that KDE employees enjoyed under the merit system? Are all seniority rights in the Department lost? Are all career employment rights lost?
5. If a person is rehired in the Department of Education on July 1, 1991, will he/she be rehired under the Merit System, or will he/she be considered a non-merit employee?
In answer to your first question, this Office recently issued OAG 91-66 which sets forth the rights of merit employees whose employment is terminated by legislative action effective June 30, 1991. That letter makes clear that according to KRS 156.016 employees who are terminated have no priority status for reemployment in the Department of Education. Nevertheless, those employees have the rights of career employees which gives them priority on reemployment registers in other agencies.
In answer to your second question regarding whether an individual who is rehired in the Department of Education on July 1, 1991, is under the merit system or not, it is the opinion of this office that the individual will be part of the merit system administered by the Department of Personnel under the authority of KRS 18A. Under KRS 18A.115, the legislature sets forth employment that is comprised by the classified service and states in subsection (1):
The classified service to which KRS 18A.005 to 18A.200 shall apply shall comprise all positions in the state service now existing or hereafter established, except the following: . . . .
Nowhere in the list from (a) to (y) is the Department of Education exempted from the classified service. Moreover, KRS 156.016(3) does not indicate that the Department of Education is to be removed from the merit system, but states that the actions authorized "are designed for a single time use only in response to the education situation." In view of the fact that any employee rehired by the Department of Education would be a new employee, that employee, so long as he is hired into a classified position, would be required to serve a probationary period following the completion of which the individual would have status in the position that he occupies.
Whether or not an individual who is rehired in the Department of Education will be rehired as a merit or nonmerit employee will depend upon whether the Commissioner of Education hires that individual for a merit or a nonmerit position.