Request By:
Mr. Steven M. Davis,
Ms. Merle A. Insko,
Ms. Martha Keeton,
Mr. Albert S. Kennedy,
Ms. Leah L. Rising,
Mr. John C. Thomas
Department of Education
Capitol Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; Martin Glazer, Assistant Attorney General
You seek an opinion of this office concerning the loss of sick leae and vacation time under the following circumstances:
You state that the Department of Education through the Bureau of Vocational Education has provided funds to the University of Kentucky for a Curriculum Development Center. One hundred percent of the funds for salaries has been transmitted through the Bureau for Vocational Education to the University of Kentucky. The Curriculum Development specialists have been employed by the University of Kentucky and working in a liason situation with the Bureau of Vocational Education.
Apparently the Department of Education has elected to provide the Curriculum Development Center services directly within the Bureau of Vocational Education and the Bureau of Vocational Education will assume the responsibility of providing curriculum development as of July 1, 1979. You believe that you have earned accrued sick and annual leave during your tenure at the University of Kentucky and that by letter the Commissioner of Personnel has refused to authorize transfer of sick and annual leave as a matter of departmental policy. You seek our opinion as to whether sick and annual leave can be transferred from your duties at the University of Kentucky to your duties directly under the Bureau of Vocational Education.
KRS 18.140 as amended by the 1978 Acts provides in part:
((1) The classified service to which KRS 18.110 to 18.360 shall comprise all positions in the state service now existing or hereafter established, except the following:
(1) Officers and members of the staffs of state universities and colleges and student employees of such institutions and officers, teachers, and employees of local boards of education; . . ."
If you were employees of the Department of Education while you were attached at the University of Kentucky, such employees of the Curriculum Development Center of Vocational Education would be entitled to earn sick and annual leave under the merit system laws, KRS Chapter 18. If, in fact, your duties were such that you were employees of the University of Kentucky, you would be exempted from the state merit system, Chapter 18, and would be subject to only those rules pertaining to officers and members of the staffs of state universities.
While an organization chart of the Bureau of Vocational Education indicates that curriculum development is directly within the Division of Vocational Services, we must look to the order or the document which created the entity "Curriculum Development Center for Vocational Education" in order to determine the nature of the animal. In doing so, we have been furnished the contract for the continuation of the CDC which contains a provision dealing with the staff of the CDC. That portion and contract states that:
"The professional staff of the Curriculum Development Center will consist of the Director and such other full-time equivalent staff members as are needed. The staffing of the CDC will be included in the annual budget.
The duties and responsibilities of the CDC staff members are designated by the state plan for the administration of vocational education in Kentucky and the project plan approved by the U.S. Office of Education. Staff selection and assignments are the responsibility of the CDC Director.
"A in all other faculty appointments, appointment of CDC staff members will be made by the Dean of the College of Education, upon the recommendation of the Department chairman and director of the CDC. However the staff position interviewing committee shall include representatives of the Bureau of Vocational Education. Staff members of the CDC shall not be appointed without consultation and recommendation from the Bureau of Vocational Education. Staff members of the CDC shall not be appointed without consultation and recommendation from the Bureau of Vocational Education.
"Nonprofessional, clerical, and consultative services will be provided for the CDC in accordance with the need as indicated in the budget which has been approved for the fiscal year. " [Emphasis supplied]
Under review of progress, there is the following quotation:
"A decision regarding a nonrenewal [that is a nonrenewal of contract] shall be made by December 1, for the fiscal year coming up (effective July) in order that the College of Education may follow university policies regarding termination of appointments. " [Emphasis supplied]
Thus, based on this document, it appears that the employees of the CDC are really at the time they were at the University employees of the University, even though the Department of Education and the Vocational Education people had some say-so as to who was appointed. Therefore, they would fall under the exemption of the merit system statute 18.140(1)(1), that is, that they are officers and members of the staffs of state universities and colleges. We can find no provision under merit system law whereby persons coming in to the state merit system, KRS Chapter 18, may retain their sick or annual leave from another system. In 1976, KRS 18.250(2) provided a means whereby an entire entity of employees could be brought into the merit system without having to take an examination. This section was meant to cover employees brought into the state merit system who were formerly in a private mental health institution.
So, Mrs. Stokley's refusal to authorize the transfer of sick and annual leave is not just a matter of departmental policy but a matter of law. The fact that there was a precedence in transferring annual and sick leave at Paducah during a previous period only indicates that the previous transfer was illegal.
Therefore, it is the opinion of this office that the employees of the CDC were actually while at the University of Kentucky employees of the University of Kentucky and any sick or annual leave that they earned while there could not be transferred into the state merit system when these employees were moved into the state merit system.