Opinion
Opinion By: Albert B. Chandler III, Attorney General; Ross T. Carter, Manager of the Opinions Branch
Subject: Anti-nepotism statute applicable to regents of state universities
Syllabus: Anti-nepotism statute prohibits employment of relatives of university regents; there are no exemptions for appointed regents, part-time employees, or student workers
Statutes construed: KRS 164.360(2); KRS 164.001; KRS 164.020(10); KRS 164.225; KRS 164.830(1)(a)
Opinion of the Attorney General
We have been asked to construe that part of KRS 164.360(2) which establishes limits on a state university's employment of persons who have a relative on the board of regents. The specific questions presented to us are:
* Does the 1992 amendment to the statute apply to persons enrolled before the effective date of the legislation?
* Does the statute apply to appointed as well as elected regents?
* Does the statute apply to part-time as well as full-time employees?
* Does the statute apply to students enrolled in work-study and graduate assistant programs?
It is our opinion that the statute should be construed exactly as written with no implied exemptions. Therefore the answer to all four questions is yes.
1. Background
Following a controversial appointment to the University of Kentucky Board of Trustees, the General Assembly in 1992 enacted sweeping changes to the provisions in KRS chapter 164 dealing with the governing bodies of state universities. Ky Acts 1992, c 10. The statute we are examining, KRS 164.360, was amended as part of this reform legislation.
KRS chapter 164 deals with three groups or categories of state universities: the University of Kentucky, which is governed by a board of trustees; the University of Louisville, which is also governed by a board of trustees; and the remaining state universities, each of which is governed by a board of regents. The statute that we are examining, KRS 164.360(2), applies to the third group. Before the 1992 amendment, the statute read as follows:
No person shall be employed for a longer period than four (4) years. No person shall be employed who is related to any member of the board of regents as father, mother, brother, sister, husband, wife, son, daughter, aunt, uncle, sister-in-law, brother-in-law, son-in-law or daughter-in-law; except that upon written recommendation of the president of the university or college, one (1) such relative of each member of the board of regents may be appointed by the other three (3) appointed members.
The current version of the statute reads as follows:
No person shall be employed for a longer period than four (4) years. No person shall be employed at an institution where his relative serves on the board of regents for that institution.
"Relative" is defined in KRS 164.001 (enacted as part of the 1992 legislation) as "a person's father, mother, brother, sister, husband, wife, son, daughter, aunt, uncle, son-in-law, or daughter-in-law. "
2. 1992 changes to anti-nepotism statutes
The act containing the 1992 amendment to KRS 164.360(2) made four changes regarding nepotism at state universities. For the University of Kentucky and the University of Louisville, the following language was added: "No relative of a board of trustee member shall be employed by the university." KRS 164.225; KRS 164.803(1)(a). For the Council on Higher Education, similar language was added: "No relative of a Council on Higher Education member shall be employed by the agency." KRS 164.020(10).
The amended language applicable to boards of regents differs from the pattern established in the other three statutes; it says, "No person shall be employed at an institution where his relative serves on the board of regents for that institution." This difference, in conjunction with the definition of relative in KRS 164.001, creates a peculiar lack of uniformity among state universities. "Relative" includes uncles and aunts but not nephews and nieces. It includes sons-in-law and daughters-in-law but not fathers-in-law and mothers-in-law. This means that the relatives of a nephew include his uncles, but the relatives of an uncle do not include his nephews. For the University of Kentucky, the University of Louisville, and the Council on Higher Education, the statutes refer to the trustee's (or member's) relatives; for the other universities, the statute refers to the employee's relatives. Thus, at the University of Kentucky, a trustee's nephew can be employed by the university but his uncle cannot; at Kentucky State University a regent's uncle can be employed by the university but his nephew cannot.
We do not know whether this distinction was intentional, but we are confident that the various amendments made in 1992 reveal an overall strengthening of anti-nepotism provisions applicable to state universities. To apply a loose construction to the statutes is to ignore the tenor of the 1992 legislation.
3. Analysis
There is only one cardinal rule of statutory construction: statutes must be construed to give effect to the intention of the legislature as expressed in the words of the legislation.
Kentucky Association of Chiropractors, Inc., v Jefferson County Medical Society, Ky, 549 SW 2d 817 (1977). There are many other rules, any of which might be invoked to yield a particular result, but none of them applies when the words of the statute yield a plainly comprehensible meaning.
Gateway Construction Company v Wallbaum, Ky, 356 SW 2d 247 (1961).
With this principle in mind, we examine the questions presented to us. All four questions propose the existence of a limitation or exemption in the statute, despite the lack of any statutory language supporting such a proposition. The first question is whether the statute applies to persons who were validly employed under the previous version of the statute; the second is whether the statute applies to appointed as well as elected regents; the third is whether the statute applies to appointed as well as elected regents; the third is whether the statute applies to part-time employees; and the fourth is whether the statute applies to work-study and graduate assistant programs. Our answer to each question is the same: there is nothing in the statute to suggest that the General Assembly intended such exemptions, and we will not infer them. We see no reason to construe the statute to mean anything other than what it says.
The only legal argument presented to us is in reference to the question whether the statute grandfathers in those who were employed before the amendment's effective date. It is suggested that the word shall denotes futurity, so that the phrase "no person shall be employed" refers only to persons hired in the future, effectively exempting those hired in the past.
It is true that the word shall sometimes expresses futurity; however, that is not the meaning usually ascribed to the word in statutes, and in any event the use of shall to express futurity is readily apparent from its context. For example, the following sentence appears in the Constitution of the United States:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
US Const, Art 1, § 6, cl 2. Here the word shall is used in both senses: to express command and to denote futurity. The context makes it clear that "shall be appointed" and "shall be a Member" express commands while "shall have been created" and "shall have been increased" denote futurity.
Nothing in the context of the statute we are construing suggests that shall is used to denote futurity. We reject the suggestion that the word shall as used in KRS 164.360(2) creates an implicit grandfather clause.
4. Conclusion
KRS 164.360(2) must be construed to mean strictly what it says. It contains no exemptions of any kind.