Request By:
Joy Arnold, Director, Legal Services
Kentucky Education Association
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Jennifer L. Carrico, Assistant Attorney General
Opinion of the Attorney General
Summary
The Kentucky Community and Technical College System cannot force former employees of the Cabinet for Workforce Development to transfer into the KCTCS personnel system either directly or indirectly by condition of promotion or transfer. KCTCS has comprehensive authority to administer its personnel systems under KRS Chapter 164. However, this broad administrative authority is subject to certain specific limitations contained in KRS 164.5805. According to that statute, KCTCS employees transferring from the Cabinet for Workforce Development have the right to choose to enter the KCTCS personnel system at any time during their employment with KCTCS. Because this right is express in the plain language of KRS Chapter 164, KCTCS cannot eliminate that right.
Introduction
In 1990, the Kentucky General Assembly established the Kentucky Department for Technical Education within the Cabinet for Workforce Development. Ky. Rev. Stat. § 151B.025 (Baldwin 2000). The General Assembly created the department to administer the Kentucky Tech System schools, which provide non-degree vocational technical classes to adult learners. Id. Employees of the Kentucky Tech System governed at the time by the KRS Chapter 18A personnel system were transferred into a new personnel system created for the Department for Technical Education under KRS Chapter 151B. Ky. Rev. Stat. § 151B.025(3) (Baldwin 2000).
Seven years after it created the Department for Technical Education, the General Assembly launched an initiative designed to achieve, among other goals, "[a] seamless, integrated system of postsecondary education . . ." Ky. Rev. Stat. § 164.003(2)(a) (Baldwin 2000). As part of that initiative, the General Assembly once again transferred the entire Kentucky Tech System, including all staff positions supporting and related to the Kentucky Tech System, from the Cabinet for Workforce Development into the newly created Kentucky Community and Technical College System ("KCTCS"). Ky. Rev. Stat. § 164.5805(1) (Baldwin 2000).
Much like Chapter 151B, KRS 164.5805 requires KCTCS to adopt a new personnel system for its employees transferring from the Cabinet for Workforce Development. Ky. Rev. Stat. § 164.5805(1)(e) (Baldwin 2000). That personnel system is to be operated independent of and separate from a second personnel system administered by KCTCS for its employees who are not transferring from the Cabinet for Workforce Development. Ky. Rev. Stat. § 164.5805 (2) (Baldwin 2000). In other words, KRS 164.5805 requires KCTCS to administer two separate personnel systems for KCTCS employees: (1) the KRS 164.5805 personnel system for employees transferring from the Cabinet for Workforce Development; and (2) the KCTCS personnel system for new employees of KCTCS. Ky. Rev. Stat. § 164.5805(1)(e) (Baldwin 2000).
The Kentucky Education Association requests the Attorney General's Opinion on the following questions regarding KRS Chapter 164:
1. Do former employees of the Workforce Development Cabinet who were transferred into the KCTCS retain all the statutory and regulatory rights granted to them by the KRS 151B personnel system in effect on June 30 1998?
2. Unless each employee determines of his own volition to move under the personnel system of KCTCS, does the administration of KCTCS have the right to involuntarily place an employee under that system?
3. Does the administration of KCTCS have the authority to condition the completion of a favorable job action (promotion, transfer, etc.) upon the consent of the affected employee to give up his or her 151B rights and make himself or herself subject to the KCTCS personnel system?
Analysis
1. Do former employees of the Workforce Development Cabinet who were transferred into the KCTCS retain all the statutory and regulatory rights granted to them by the KRS 151B personnel system in effect on June 30, 1998?
As a general rule, the Kentucky General Assembly can alter, expand or even eliminate any statutorily created government department, office or position. See
Payne v. Davis, Ky., 254 S.W.2d 710 (1953); Board of Alderman of City of Ashland, Ky., 145 S.W.2d 814 (1940);
Shanks v. Howes, Ky., 283 S.W. 966 (1926);
Standeford v. Wingate, 63 Ky. 440 (1866). In practical application, this means that if the General Assembly creates some kind of entitlement, it is not precluded by having done so from altering or eliminating that entitlement. See
Goldberg v. Kelly, 397 U.S. 254 (1970);
Dodge v. Board of Education of City of Chicago, 302 U.S. 74 (1937);
Board of Aldermen of City of Ashland v. Hunt, Ky.App., 145 S.W.2d 814 (1940). Even if the General Assembly goes so far as to terminate entire governmental departments, the legislative process alone affords the employees of those departments all the process that is due under the Fifth and Fourteenth Amendments to the United States Constitution. See
Atkins v. Parker, 472 U.S. 115 (1985). Thus, if former employees of the Cabinet for Workforce Development have any personnel rights they had under Chapter 18A or 151B, they do so only by virtue of KRS Chapter 164. In other words, the rights of KCTCS employees regarding personnel issues are derived solely from the statutes transferring them into the KCTCS system.
As described above, KRS 164.5805 transfers former workforce development employees in the Kentucky Tech System into KCTCS. Subsections (d) and (e) of KRS 164.5805 define the new personnel system that is designed specifically for those transferring employees. These particular subsections incorporate into the KRS 164.5805 personnel system many of the rights and benefits established in Chapters 18A and 151B. Specifically, subsection (d): (1) requires KCTCS to transfer employees' accumulated sick leave, compensatory time and annual leave earned under Chapter 18A or 151B; (2) grants transferring employees their current standing and permits employees in the process of earning standing to do so according to Chapter 18A or 151B rules; (3) permits transferring employees to remain in their own retirement systems at the time of transfer and receive the same health benefits package or one equivalent to that provided to other state or university employees; and (4) guarantees transferring employees a salary not less than their previous salary. Ky. Rev. Stat. § 164.5805(d) (Baldwin 2000). Thus, subsection (d) of KRS 164.5805 affirmatively grants transferring employees certain rights and benefits they may have had under KRS Chapter 18A or 151B.
In addition to the rights and benefits granted in subsection (d), subsection (e) of KRS 164.5805 defines the overall rules that comprise the KRS 164.5805 personnel system. Subsection (e) requires KCTCS to "adopt rules that are the same as the administrative regulations" under Chapter 18A and 151B. Ky. Rev. Stat. § 164.5805(e) (Baldwin 2000). This means that KCTCS rules administering the KRS 164.5805 personnel system must be the same as the regulations that governed the transferring employees under Chapter 18A and 151B.
This does not mean, however, that former workforce development employees transferring into KCTCS remain in the Chapter 18A and 151B personnel systems or "retain" any rights under those statutes. Instead, as described above, transferring employees are governed by an entirely new personnel system administered for them by KCTCS that is comprised of rules identical to the administrative regulations governing those employees under Chapter 18A and 151B. Although transferring employees may have some rights and benefits that they had under Chapter 18A or 151B, those rights and benefits derive exclusively from KRS 164.5805.
2. Unless each employee determines of his own volition to move under the personnel system of KCTCS, does the administration of KCTCS have the right to involuntarily place an employee under that system?
The administration of KCTCS is not authorized to force its employees transferring from the Cabinet for Workforce Development to transfer into the KCTCS personnel system. The Kentucky Community and Technical College System is a creature of statute. Ky. Rev. Stat. § 164.580 (Baldwin 2000). As such, it has only the authority granted to it by the
Kentucky General Assembly. South Central Bell Telephone Co. v. Utility Regulatory Commission, Ky., 637 S.W.2d 649 (1982). This means that KCTCS has comprehensive authority to interpret and administer the personnel systems under KRS Chapter 164, but only to the extent that its interpretation of that chapter does not violate Kentucky law. See
Morgan v. Natural Resources and Environmental Protection Cabinet, Ky.App., 6 S.W.3d 833 (1999). Thus, KCTCS' authority to administer the KRS Chapter 164 personnel systems is subject to the specific, express statutory limitations contained in KRS 164.5805. KCTCS cannot limit, enlarge or alter the plain language of that statute. See
Camera Center Inc. v. Revenue Cabinet, Ky., 34 S.W.3d 39 (2000);
Ruby Construction Co., Inc. v. Department of Revenue, 578 S.W.2d 248 (1978);
Linkhous v. Darch, Ky., 323 S.W.2d 850 (1959).
Accordingly, courts will determine KCTCS' authority to administer the KRS 164.5805 personnel system from the plain language of KRS Chapter 164. See
Commonwealth v. Kash, Ky.App., 967 S.W.2d 37 (1997);
City of Louisville v. Helman, Ky., 253 S.W.2d 598 (1952). The plain language of KRS 164.5805 enables the court to ascertain and give effect to the true intent of the General Assembly. See
Owens-Illinois Labels, Inc. v. Commonwealth, Ky.App., 27 S.W.3d 798 (2000);
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994). In fact, the plain language of that statute "cannot be ignored by the courts simply because another interpretation might be considered to state a better policy." See
ITT Commercial Finance Corp. v. Madisonville Recapping Co., Inc., Ky.App., 793 S.W.2d 849 (1990);
Board of Education of Nelson County v. Lawrence, Ky., 375 S.W.2d 830 (1963).
The relevant language of KRS 164.5805(e) states as follows:
(e) . . . A transferred employee shall have the option to elect to participate in the new Kentucky Community and Technical College personnel system in lieu of the rules under which the employee transferred. An employee who elects to accept this option may not return to the previous personnel policy. An employee shall have the right to exercise this option at any time .
KY. Rev. Stat. § 164.5805(1)(e) (Baldwin 2000) (emphasis added). This statute grants former employees of the Cabinet for Workforce Development two important rights. First, KRS 164.5805(e) grants transferring employees an option to choose to transfer into the KCTCS personnel system. Id. Second, KRS 164.5805(e) grants them the right to exercise that option at any time. Id.
Forcing former workforce development employees into the KCTCS system without their consent violates the plain language of KRS 164.5805(e). Such a policy eviscerates the employees' option to choose to enter the KCTCS personnel system as well as the right to exercise that option at any time. It also deprives transferring employees of their right to remain in the KRS 164.5805 personnel system designed specifically for them. Because such a policy clearly violates the plain language of KRS Chapter 164, it is outside the authority of KCTCS. Cf.
Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-843 (1984) ("If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.");
Dixie Fuel Co. v. Commissioner of Social Sec., 171 F.3d 1052 (6th Cir. 1999) ("Because the statute is clear and unambiguous, there is no reason even to look at legislative history.");
Jewish Hosp, Inc. v. Secretary of Health and Human Services, 19 F.3d 270 (6th Cir. 1994) (reversing agency interpretation as contrary to the clear language of the statute);
Delta Airlines, Inc. v. Commonwealth, Ky., 689 S.W.2d 14 (1985) (striking tax formula adopted by the Department of Revenue as contradictory to the plain meaning of the statute).
3. Does the administration of KCTCS have the authority to condition the completion of a favorable job action (promotion, transfer, etc.) upon the consent of the affected employee to give up his or her 151B rights and make himself or herself subject to the KCTCS personnel system?
KCTCS cannot condition former workforce development employees' transfer or promotion on their consent to enter the KCTCS personnel system. As a primary observation, the government is not permitted to achieve indirectly what it cannot achieve directly.
Fairbank v. United States, 181 U.S. 283 (1901) (what cannot be done directly cannot be accomplished indirectly by legislation which accomplishes the same result). If KCTCS cannot force former workforce development employees into the KCTCS personnel system, it cannot accomplish that result by condition of transfer or promotion. Cf.
Rust v. Sullivan, 500 U.S. 173 (1991) (it has never been sufficient to justify an otherwise unconstitutional condition upon public employment that the employee may escape the condition by relinquishing his or her job);
United States v. Leake, 95 F.3d 409 (6th Cir. 1996) ("fruit of the poisonous tree" doctrine ensures that the government cannot achieve indirectly what it is forbidden to accomplish directly).
Additionally, conditioning favorable job actions for former workforce development employees on their consent to transfer into the KCTCS personnel system conflicts with the purpose and legislative policy of KRS Chapter 164. KRS Chapter 164 governs the rights and responsibilities of transferring employees within the KCTCS system. The language of that chapter, when read as a whole, provides former workforce development employees a personnel system that is nearly identical to the personnel systems under Chapters 18A and 151B. This legislative effort practically to reconstruct these employees' former personnel systems is a clear expression of legislative policy to preserve their vested rights, smooth their transition into KCTCS, and provide them some measure of security in their employment within the KCTCS system. Accordingly, KRS 164.5805(e) must be interpreted to grant former workforce development employees the option to choose to enter the KCTCS personnel system at any time they are employed within the KCTCS system, even upon transfer or promotion. Cf.
O'Gilvie v. U.S., 519 U.S. 79 (1996) (testing agency exercise of administrative authority against purpose of the statute);
Brown v. Gardner, 513 U.S. 115 (1994) (meaning of statute must reflect policy and context);
Springer v. Commonwealth, Ky., 998 S.W.2d 439 (1999) (statute must be read in light of mischief to be corrected and the end to be obtained);
Beatus v. Commonwealth, Ky.App., 965 S.W.2d 167 (1998) (each statutory chapter is self-contained and complete and reflects its own distinct legislative purpose);
Kentucky Industrial Utility Customers, Inc v. Kentucky Utilities Co., Ky., 983 S.W.2d 493 (1998) (policy and purpose of a statute must be considered in determining the meaning of the words used);
Commonwealth v. Kash, Ky.App., 967 S.W.2d 37 (1997) (courts must consider the intended purpose of a statute).
Interpreting KRS 164.5805(e) to permit KCTCS to limit this option to a single position renders the option meaningless because that interpretation (1) permits KCTCS to terminate the employees' statutory right to choose personnel systems, and (2) alleviates KCTCS' statutory responsibility to administer the 164.5805 personnel system. Cf.
Dunn v. Commodity Futures Trading Commission, 519 U.S. 465 (1997) (rejecting FTC interpretation of statutory exemption that would deprive the exemption of the principle effect congress intended);
NLRB v. Health Care and Retirement Corp. of America, 511 U.S. 571 (1994) (rejecting NLRB interpretation of a statute that renders a portion of the statute meaningless) .
Whether such a policy is adopted under KCTCS' overall administrative authority or the specific provisions in KRS 164.5805 is irrelevant. The fact remains that KCTCS retains comprehensive authority to administer its personnel systems only to the extent that it does not conflict with Kentucky law.
Mid-America Care Foundation v. NLRB, 148 F.3d 638 (6th Cir. 1998) ("If legislature has directly spoken to the precise question at issue, the reviewing court must give effect to the will of congress irrespective of any contrary agency interpretation."). Requiring former workforce development employees to enter the KCTCS system, either directly or by condition of transfer or promotion, clearly violates the plain language and legislative policy of KRS Chapter 164. Therefore, KCTCS cannot condition former workforce development employee's favorable job actions on the employee's consent to transfer into the KCTCS personnel system. Cf.
Wolpaw v. Commissioner of Internal Revenue, 47 F.3d 787 (6th Cir. 1995) ("Congress and the Supreme Court have also instructed the courts not to follow an agency's interpretation if that interpretation violates the specific language of the statute or is otherwise contrary to law.");
American Academy of Opthamology Inc. v. Sullivan, 998 F.2d 377 (6th Cir. 1993) (judiciary will not defer to agency interpretation that conflicts with the plain language of the statute). On the other hand, KCTCS is authorized to require new employees who were not transferred from the Cabinet for Workforce Development to enter the KCTCS personnel system. The 164.5805 personnel system, including the statutory right to choose the KCTCS personnel system at any time, applies exclusively to KCTCS employees who transferred from the Cabinet for Workforce Development. Ky. Rev. Stat. § 164.5805(e) (Baldwin 2000). New employees of KCTCS are not eligible to be governed by that system. Ky. Rev. Stat. § 164.5805(2) (Baldwin 2000). Therefore, requiring new employees to be subject to the KCTCS personnel system is consistent with KCTCS administrative authority under Kentucky law. Because conditioning favorable job actions for former workforce development employees on their consent to enter the KCTCS personnel system exceeds KCTCS' administrative authority, any constitutional issues arising from such a policy need not be addressed in this opinion. See
DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568 (1988).
Conclusion KCTCS cannot terminate former workforce development employees' right to choose to transfer into the KCTCS personnel system either directly or indirectly by condition of promotion or transfer. KCTCS' authority to administer the KRS 164.5805 personnel system is subject to the express, statutory limitations contained in KRS Chapter 164. That chapter grants specific personnel rights and benefits to KCTCS employees transferring from the Kentucky Cabinet for Workforce Development. KRS 164.5805(e) in particular grants those employees the right to choose to enter the KCTCS personnel system at any time during their employment with KCTCS. In administering its personnel systems, KCTCS must recognize this statutory right that is express in the plain language of KRS 164.5805. Therefore, KCTCS cannot directly or indirectly eliminate this statutory right.