Request By:
Colin Gardner
Firefighter
Fern Creek Fire Department
Natalie S. Taylor
President
Jefferson County Professional Firefighters Local 3972
Opinion
Opinion By: Daniel Cameron, ATTORNEY GENERAL; Marc Manley, Assistant Attorney General
Opinion of the Attorney General
Kentucky law requires all counties, municipalities, school districts, and other political subdivisions of the state to provide annual military leave to all officers and employees who are members of the National Guard or of any reserve component of the Armed Forces of the United States in accordance with KRS 61.394. At issue is whether that mandate applies to a fire protection district created pursuant to KRS 75.010. 1For the reasons that follow, it is the Attorney General's opinion that it does.
Under KRS 61.396 "[a]ll officers and employees of counties, municipalities, school districts or other political subdivisions of the state who are members of the National Guard or of any reserve component of the Armed Forces of the United States, including the United States Public Health Service, shall be granted annual military leave by their respective employers as provided in KRS 61.394." KRS 61.394 provides, in relevant part, that "all officers and employees" serving in the National Guard or other reserve service are "entitled to leave of absence from their respective duties, without loss of time, pay, regular leave, impairment of efficiency rating, or of any other rights or benefits to which they are entitled[.]" Thus, under KRS 61.394, an eligible employee is entitled to a maximum of 21 days of paid military leave each fiscal year. In addition, the statute expressly provides that any unused military leave be carried over to the next year, but that it expires two years after it has accrued. KRS 61.394.
The General Assembly has provided that a fire protection district and its personnel "shall be considered an agent of the Commonwealth of Kentucky." KRS 75.070(1). Likewise, the Kentucky Supreme Court has held that a fire protection district, created under KRS Chapter 75, is a political subdivision of the state. Cf.
Caneyville Volunteer Fire Dept. v. Green's Motorcycle Salvage, Inc. , 286 S.W.3d 790, 804-05 (Ky. 2009) (holding that KRS Chapter 75 fire districts are agents of the Commonwealth entitled to sovereign immunity); see also
Louisville Extension Water Dist. v. Diehl Pump & Supply Co. , 246 S.W.2d 585, 586 (Ky. 1952) (holding that a water district created under KRS Chapter 74 is a political subdivision because it was created pursuant to statute, had a governing body appointed pursuant to statute, and held corporate powers). 2Therefore, KRS 61.396 imposes a mandatory duty on fire protection districts to provide this benefit to its employees.
Although the statute sets forth a broadly applicable rule, it arises in this particular case of a fire protection district employee that serves as an Airman in the Kentucky Air National Guard. Mr. Gardner is a firefighter employed by the Fern Creek Fire Department. The Fern Creek Fire Department is a fire protection district created under KRS Chapter 75. Thus, it is a political subdivision of the state under KRS 61.396. For this reason, the statutory mandate in KRS 61.396 applies, and it is the Attorney General's opinion that the Department must provide Mr. Gardner the annual military leave to which he is entitled.
For these reasons, it is the Attorney General's opinion that an employee of a fire protection district created pursuant to KRS 75.010 is statutorily entitled to military leave benefits under KRS 61.394.
Footnotes
Footnotes
1 Although Mr. Gardner asks what remedies may be available for leave perhaps impermissibly denied, the Office declines to address that question because it is more appropriately addressed to private legal counsel.
2 The Department claims that it is a "special district" because it was created under KRS Chapter 75. According to the Department, "special districts" are not "other political subdivisions of the state" and therefore KRS 61.396 does not apply to them. But KRS 61.396 does not exclude "special districts" from its ambit and instead broadly includes " other political subdivisions of the state." KRS 61.396 (emphasis added). Moreover, KRS 75.070 makes fire district personnel "agent[s] of the Commonwealth" when they respond to fire alarms. It would be inconsistent for the General Assembly to consider fire district personnel to be agents of the state when they are protecting the Commonwealth's citizens, only to silently deny the same firefighters paid military leave because they are employees of a "special district." If that had been the General Assembly's intent, it would have expressly excluded "special districts" from the phrase "other political subdivisions of the state."