Request By:
M. Daniel Herndon
Department for Natural Resources
and Environmental Protection
Office of General Counsel
Fifth Floor, Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You seek an opinion as to the proper interpretation of 101 KAR 1:140, Section 2, as it deals with full-time and part-time employees in calculating years of service for annual leave.
It is your position that the regulation should be interpreted to allow part-time service to be prorated in calculating full-time years of service.
You give your own example of working part-time (over 100 hours per month) from August 5, 1978 through January, 1980. (you did not give us your full-time service.) It is your belief that this part-time service should be translated into a nine months prorated full-time service.
In our further conversation with you, you assert that your position is bolstered by the following sentences in Section 2 aforesaid:
"In computing years of total service for the purpose of allowing annual leave, only those months for which an employee earned annual leave shall be used."
and,
"In computing years of total service for the purpose of allowing annual leave for part-time employees, only those months in which the employee worked at least one hundred hours shall be used."
The full text of 101 KAR 1:140 Section 2, Subsection (1) is as follows:
"Each full-time employee in the state service, except seasonal, temporary and emergency emplouees, shall be allowed annual leave with pay at the following rate: Years of ServiceAnnual leave Days
0-5 years -- 1 leave day per month; 12 per year
5-10 years -- 1 1/4 leave days per month; 15 per year
10-15 years -- 1 1/2 leave days per month; 18 per year
15 years and over -- 1 3/4 leave days per month;
An employee must have worked more than half of the work days in a month to qualify for annual leave. In computing years of total service for the purpose of allowing annual leave, only those months for which an employee earned annual leave shall be used. Former employees who have been rehired and who had been previously dismissed for cause from state service shall receive credit for service prior to the dismissal, except where such dismissal resulted from a violation of KRS 18.310, 18.320, or 18.990. Employees serving on a part-time basis who work at least one hundred hours a month shall be allowed annual leave with pay at the following rate: Years of ServiceAnnual Leave Hours
0-5 years -- 4 leave hours per month; 48 per year
5-10 years -- 5 leave hours per month; 60 per year
10-15 years -- 6 leave hours per month; 72 per year;
15 years and over -- 7 leave hours per month; 84 per year
In computing years of total service for the purpose of allowing annual leave for part-time employees, only those months in which the employee worked at least one hundred hours shall be used. Employees serving on a part-time basis who work less than one hundred hours a month or on a per diem basis shall not be entitled to annual leave."
While it might be fairer to allow the combining of part-time and full-time service for purposes of determining years of service, we do not agree that the regulation in its present form provides for the interpretation that you advocate.
The sentences that you point out dealing with total service, in our view, only preclude consideration for total service those months in which an employee does not earn annual leave (for full-time employees) or 100 hours of work (for part-time employees). There is nothing in that language that authorizes combining part-time and full-time in considering total service for one formerly or intermittently part-time and who is now on full-time.
And, even if you could interpret the regulation to allow such combining -- how would you translate part-time service into percentages of full-time service?
You assume that you would do so by using each four hours of leave as a percentage of a full 7 1/2 hours for full-time service (per month). But, how would you translate part-time units where the part-time service earned is over five years? Such a person under the regulation would earn five leave hours per month, and yet would have five years of part-time service. And, carrying your interpretation further, how would you treat a person with five years of part-time service (with five leave hours per month) with one with nine years of part-time service (again earning five leave hours per month)? In your proposed solution, both would earn the same percentage based upon five leave hours per month, yet one has almost twice as many years of part-time service.
Therefore, in our opinion, your proposed interpretation could lead to unfair and strained results, and we can find no language indicating that the Personnel Board intended such result from the body of the regulation.
In our view, the following language should determine the board's intention.
"Each full-time employee in the state service, except seasonal, temporary and emergency employees, shall be allowed annual leave with pay at the following rate:
0-5 years -- 1 leave day per month; 12 per year
5-10 years -- 1 1/4 leave days per month; 15 per year
10-15 years -- 1 1/2 leave day per month; 18 per year
15 years and over -- 1 3/4 leave day per month; 21 per year." (Emphasis supplied. )
Only full-time service would be considered in determining whether an employee moved from one leave day per month to 1 1/4 leave day per month.
And, complementarily, only part-time service would be considered when a part-time employee moves from four leave hours per month to five leave hours per month, because the language there states: "Employees serving on a part-time basis who work at least one hundred hours a month shall be allowed annual leave with pay at the following rate.
0-5 years -- 4 leave hours per month; 48 per year
5-10 -- 5 leave hours per month; 60 per year
10-15 years -- 6 leave hours per month; 72 per year
15 years and over -- 7 leave hours per month; 84 per year." (Emphasis supplied. )
There is no language telling us how to translate part-time service into a percentage of full-time service, nor any clear indication that the board intended such an interpretation in promulgating the regulation.
So, in conclusion, it is our opinion that the Personnel Department's (and the Personnel Board's) interpretation is correct, that part-time and full-time service cannot be combined and prorated.