Request By:
William P. Hanes, Deputy Commissioner of Benefit Services, Kentucky Retirement Systems
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Ross T. Carter, Assistant Attorney General
Opinion of the Attorney General
House Bill 250, enacted in the 1998 Regular Session, extends retirement benefits for hazardous duty employees who are members of the County Employees Retirement System (CERS) and the State Police Retirement System. We have been asked whether it also extends benefits of hazardous duty employees who are members of the Kentucky Employees Retirement system (KERS). It does.
What HB 250 does
In general, the bill provides a retirement benefit for hazardous duty employees by computing their retirement benefits based on the highest salary during three years rather than the five years applicable to other employees. At the same time, the bill increases the required contribution for hazardous duty employees by raising the rate at which they must contribute from 7% to 8%. The bill accomplishes these changes in the following manner:
. Section 1 amends KRS 61.592(3)(a) to raise from 7% to 8% the contribution rate for hazardous duty employees who are members of CERS.
. Section 2 amends KRS 78.510 to use three years rather than five in computing benefits for hazardous duty employees who are members of CERS.
. Section 3 amends KRS 16.505(9) to use three years rather than five in computing benefits for hazardous duty employees who are members of the State Police Retirement System.
. Section 4 amends KRS 16.545(1) to raise from 7% to 8% the contribution rate for hazardous duty employees who are members of the State Police Retirement System.
Thus we see that for members of CERS and the State Police Retirement System, there are clearly two provisions: one decreasing the salary years and one increasing the contribution rate.
Hazardous duty employees who are members of KERS are governed by KRS 61.592(4), which before the recent amendment provided:
The normal retirement age, retirement allowance, other benefits, eligibility requirements, rights, and responsibilities of a member in a hazardous position, as prescribed by sections (1), (2), and (3) of this section, and the responsibilities, rights, and requirements of his employer shall be as prescribed for a member and employer participating in the State Police Retirement System as provided for by KRS 16.510 to 16.652.
Because this provision places KERS hazardous duty employees on an equal level with State Police hazardous duty employees, one would naturally conclude that the changes in State Police Retirement in sections three and four of House Bill 250 would apply to KERS hazardous duty employees--that is, they would use three salary years and would contribute at 8%. But House Bill 250 amended the provision quoted above as follows:
Except for the employee contribution by members of the Kentucky Employees Retirement System, the normal retirement age, retirement allowance, other benefits, eligibility requirements, rights, and responsibilities of a member in a hazardous position, as prescribed by sections (1), (2), and (3) of this section, and the responsibilities, rights, and requirements of his employer shall be as prescribed for a member and employer participating in the State Police Retirement System as provided for by KRS 16.510 to 16.652. The employee contribution for a member of the Kentucky Employees Retirement system shall be seven percent (7%).
Here we have an explicit provision stating that KERS hazardous duty employees do not inherit the new contribution rate for State Police hazardous duty employees. The contribution rate is the only exception; the number of salary years is not excepted, so by operation of KRS 61.692(4) the amendment in section three of House Bill 250 applies to KERS hazardous duty employees.
Permissible construction of House Bill 250
House Bill 250 creates the anomalous situation that for two of the three affected groups, there is a benefit and a corresponding liability. For the third group there is a benefit but no corresponding liability. One must therefore ask whether the bill should be construed to treat the three groups differently, laying down the anomaly to an inadvertent drafting error.
There is but one cardinal rule of statutory construction. Unfortunately it is frequently misstated. In
Wesley v Board of Education of Nicholas County, Ky, 403 SW 2d 28, 29 (1966), for example, the court said, "Since the question before us involves statutory construction we initiate our inquiry from the fundamental touchstone that the will or intent of the legislature must be a pole star to guide us." Statements such as this tempt one to conclude that a court has a roving commission to determine legislative intent from whatever quarter seems to it the most suitable. The rule was correctly stated in
Kentucky Association of Chiropractors, Inc. v Jefferson County Medical Society, Ky, 549 SW 2d 817, 821 (1977): "In determining the intent of the General Assembly in enacting legislation, the primary rule is to ascertain the intention from the words employed in enacting the statute, rather than surmising what may have been intended but was not expressed." That is to say, if the legislature's intention may be ascertained from the words employed in the statute, then the inquiry stops. What the legislature wrote is what the legislature meant.
Although House Bill 250 produces a curious result--we have no idea why one group should be treated differently from the other two--it does not by any means produce an uncertain or unclear result. The words are perfectly comprehensible and yield but one meaning. It is not appropriate to invoke a secondary principle of statutory construction in search of a different result.
Conclusion
Hazardous duty employees who are members of KERS pay a contribution rate of 7% even thought they enjoy benefits equivalent to members of CERS and the State Police Retirement system who pay a contribution rate of 8%.