Request By:
Robert H. Allphin
Commissioner of Revenue
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You seek an opinion of this office as to whether Property Valuation Administrators (hereafter PVA) and their deputies may accrue, use, and receive payment for accrued annual and sick leave.
Specifically, you ask the following:
"1) Is there enabling statutory authority for the accrual, use, and payment of annual leave and sick leave for the elected PVA?
"2) Is there enabling statutory authority for the accrual, use and payment of annual leave and sick leave for the Deputy PVA?
"3) If the answer to question #1 and/or question #2 is positive, should the Department of Revenue implement such procedures by operating policy manual, or must it be implemented by administrative regulations?
"4) If the answers to the first two questions are in the negative, can the PVA, independently and without review and approval of the Department of Revenue, implement a leave procedure for their deputies? "
You have been kind enough to list those statutes, opinions, and cases which you believe to be related to the problem.
As you point out, this office advised certain former parole board members that there was no statutory authority for payment of accrued annual leave to them. [The 1978 General Assembly amended statutes to allow payment thereafter.] The Franklin Circuit Court in Williamson, et al v. Commonwealth, has agreed with this office's opinion. That case is now pending in the Kentucky Court of Appeals.
And, we have previously advised that neither a Commonwealth Attorney nor his deputies may receive accrued annual leave (OAG 75-650).
The PVA (formerly county assessor) is elected for four-year terms, (KRS 132.370(2)). Subsection 3 of that statute provides that both the PVA and all deputies and assistants are eligible for participation in life insurance benefits (KRS 18.410), deferred compensation (KRS 18.510-18.600), and state retirement (KRS 61.510 through KRS 61.692).
KRS 132.590, a very comprehensive statute, provides for a formula for setting the compensation of the PVA. Subsection 1, thereof, provides in part:
"Should a property valuation administrator for any reason vacate the office in any year during his term of office, he shall be paid only for the calendar days actively served during the year."
Subsection 2 of that statute requires that the grade classification system for PVAs be equivalent to the classification system set up by the Department of Personnel. Subsection 4 authorizes classification grade changes corresponding to those of the Department of Revenue's employees. Subsection 5 authorizes similar equivalency for the PVA's deputies and other authorized personnel.
Subsection 6 requires the PVA to submit his budget to the Department of Revenue for approval, and authorizes budgeted funds for the employer's share of social security, state retirement, and "other authorized expenses of the office."
Further, the deputies serve at the PVA's pleasure. But, no expenditure for their compensation can be made out of state funds without the Department of Revenue's prior authority.
From these statutes, we can find no specific reference to allowance of annual or sick leave for the PVA or his deputies, and certainly no reference to the payment of accrued annual leave when they leave.
Annual and sick leave references are found in KRS 18.210(8) and 18.220(1)(a), both of which authorize rules for "annual, sick and special leaves of absence, with or without pay, or reduced pay, after approval by the governor as provided in KRS 18.170(2)."
KRS 18.210 authorizes the Personnel Board to promulgate such rules for the classified service.
KRS 18.220 authorizes such rules for certain, non-classified positions enumerated in KRS 18.140, to wit:
"(f) principal assistants or deputies for cabinet secretaries, department heads, bureau commissioners and the administrative heads of all boards and commissioners;
"(g) one additional principal assistant or deputy for cabinet secretaries, "
(h) division directors;
(i) physicians;
(j) private secretaries for (e), (f) and (g);
(o) seasonal, temporary and emergency employes;
(t) superintendents of state institutions;
(u) staff members of the Kentucky Historical Society.
Accordingly, similar annual and sick leave rules have been promulgated for the aforesaid positions, both classified and those enumerated non-classified.
Further, Subsection 2 of KRS 18.220 since 1978 permits the optional use of rules for employes of the General Assembly and Legislative Research Commission (a) the governor, lieutenant governor, secretary of the governor's cabinet, and program administrator's staff, (d) and cabinet secretaries, department heads, etc., (e) and federally funded time limited employes, (p).
But, neither the PVA nor his deputies seem to fit into any of these aforementioned categories.
Certainly, the PVA is a state officer as was held in
Jefferson County Fiscal Court v. Trager, 302 Ky. 361, 194 S.W.2d 851 (1946). There, the Court referred to the county tax commissioner (the former designation of the PVA) and determined that he was a "state officer. ' That being so, his deputies are deputy state officers. The PVA is elected, serves a four-year term, providing he meets certain qualifications. His deputies are appointed by him and can be hired and fired at will by the PVA. The rate of their salaries, number of deputies are controlled by the Department of Revenue, but the PVA has control of the duties of said deputies. As long as they do not serve so little time as to abandon their positions, the PVA can permit them to be off with pay for reasonable periods of leave for annual and sick reasons.
Obviously, if the PVA were to permit excessive leave with pay for his deputies, there is an inference that such deputies have abandoned their positions or are receiving pay or emoluments without public service in violation of Kentucky Constitution, Section 3, in that ". . . no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services."
In other words, a reasonable allowance of time off for sick leave or annual leave would be considered as part of the perquisites of public service. An unreasonable allowance would not be so considered.
Should the PVA follow the personnel board's rules for earning and taking sick and annual leave, there would be precedent for considering such procedure as a reasonable allowance as meeting statutory and constitutional requirements. Anything in excess may be suspect or subject to challenge and the Department of Revenue has control thereof by operation of KRS 132.590(6) in that "No state funds available to any property valuation administrator's office as compensation for deputies and other authorizes personnel or for other authorized expenditures shall be paid without authorization of the department of revenue. . . ." (Emphasis supplied.)
However, we see a clear distinction between allowing time off for annual or sick leave and the payment of a lump, accrued sum for unused annual leave.
There is inherent authority for the former in that the PVA determines the duties and activities of his deputies. But, to pay for unused leave is an expenditure that must be specifically authorized. Such expenditure is authorized for certain personnel in state service by authority of KRS 18.210 and 18.220, and rules promulgated thereunder.
Neither the PVA nor his deputies fall within the categories listed in those statutes and the statutes authorizing the amount and manner of compensation for him and his deputies do not specifically authorize such an expenditure. To pay accrued annual leave in such case would violate Kentucky Constitution Section 3 and Section 230 which provides, in part, that "No money shall be drawn from the state treasury except in pursuance of appropriations made by law. . . ."
There will have to be a statutory change to allow such additional perquisites.
CONCLUSION
1. PVAs and their deputies may take reasonable annual and sick leave time with pay. The Department of Revenue can control the maximum via its powers to approve their budgets. Following the amount allowed for classified employees could be considered "reasonable."
2. However, under present statutes, there is NO authority for the payment of accrued annual leave to PVAs and their deputies.