Request By:
Stanley A. Searcy, Esq.
Attorney at Law
10424 Watterson Trail 2nd Floor
Jeffersontown, Kentucky 40299
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
This is in reply to your request of October 10, 1977 for an opinion of this office. You ask:
"Is it mandatory for a city of the sixth class to have workmens compensation coverage for the employees of a city or for the elected public officials and for any others who do a service for the city when such persons are not paid any type of salary or wages?"
You advised that the City of Houston Acres, a sixth class city, has five members on the Board of Trustees, one of whom acts as chairman. None of the five members who are elected get a salary and none receives any compensation whatsoever. You also advise that the marshal of the city gets $150 per month as contract service, that there are two deputy marshals who work voluntarily without salary, wages or contracted services. You also state that you as an attorney get paid $30 per month and additional amounts for special services for the City. The police judge receives no salary and his position will be abolished as of January 1, 1978, and finally, the city clerk receives $30 per month.
KRS 342.630 provides in part:
"The following shall constitute employers mandatorily subject to, and required to comply with the provisions of this chapter;
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(2) The state, any agency thereof, and each county, city of any class . . . or any other political subdivision or political entity of the state who has one or more employe subject to this chapter." (Emphasis supplied)
KRS 342.640 provides in part:
The following shall constitute employes subject to the provisions of this chapter except as exempted under KRS 342.650;
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(3) Every person in the service of . . . any . . . city of any class . . ., under any contract of hire, express or implied, and every official or officer thereof, whether elected or appointed while performing his official duties. Every person who is a member of a volunteer fire or police department shall be deemed for the purposes of this chapter, to be in the employment of the political subdivision of the state where the department is organized. . ." (Emphasis supplied)
So, it clearly appears from these two statutes that the City and every one of its officers, whether elected or appointed, are covered for workmen's compensation purposes. The Board of Trustees are officers, the marshal is an officer and his deputies are officers; so is the clerk, the city attorney (KRS 69.590) and the elected city police judge.
Apparently, your question implies that if an officer or employee receives low or no salary or compensation, he would be excluded from workmen's compensation. This is not true, because the statutes do not exclude employees because they are not paid in a position. For example, a volunteer fireman or policeman may not be paid, but he is not excluded.
In the event such persons are injured and it would be necessary to determine their average weekly wage, such wages for purposes of compensation would be determined through KRS 342.140. You will note that KRS 340.140(3) provides in the case of voluntary firemen, police and civil defense members or trainees, that the income benefits shall be based on the average weekly wage in their regular employment.
Thus, those officers or employees who receive no compensation from the city and who are injured on the job will receive benefits based upon their earnings in their regular employment, or where they have no regular employment, the wages will be determined by the usual wages for similar services where such services are rendered by paid employees.
Therefore, to recap, the City of Houston Acres is mandatorily required to have workmen's compensation for all of its officers and employees whether they are paid or not and the basis for determining their compensation would be their applicable average weekly wage as set out in KRS 342.140.