Request By:
Mr. Robert Lawrence
Director, Department of Personnel
City of Louisville
701 West Jefferson, 3rd Floor
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of August 26 in which you relate that a former member of the Board of Aldermen who is currently an employee serving as an agency head in city government has claimed "employee" status while serving as a member of the Board of Aldermen in order to receive thirty (30) days vacation that he could have accumulated during the time he served on the Board if such service was considered a form of employment under the 1979 ordinance dealing with the classification and compensation of the employees of the city of Louisville.
The Director of the Department of Law has also submitted a request on the same subject and included a copy of the ordinance in question and a memorandum on the subject in which he contends that the individual in question is entitled to the vacation leave while serving on the Board on the grounds that he was and is an "employee" within the meaning of the '79 ordinance.
After reviewing the question presented, we have reached the conclusion that the former member of the Board of Aldermen would not be entitled to receive credit for any vacation time while serving as a member of the Board that would normally accrue to an employee for prior service in city government. A member of the Board is not an employee as such nor can he be construed to be one under the terms of the ordinance.
To begin with, a member of the Board of Aldermen is undoubtedly a public officer under the charter provisions applying to the city of Louisville, namely KRS 83.440 and 83.520 as well as KRS 83.030 and 83.040 repealed by Senate Bill 26 and superseded by KRS 83A.010 (9). In addition, the position meets all of the requirements that constitute a public office as held by the court in many cases prior to the enactment of the referred to statutes, among them being Commonwealth v. Howard, Ky., 379 S.W.2d 475 (1964).
The 1979 ordinance concerns the classification and compensation of employees in the service of the city of Louisville. True, the term "city service" is defined to include all officers and employees of the city, its departments and officers and lists some that include the Board of Aldermen. The term "employ" however is defined to mean the appointment of a person to a position in city service. The term "employee" is defined as a person employed in a position in city service. The Board of Aldermen [who are elected and therefore neither appointed nor employed] is referred to in only two other sections of the ordinance; one in Part III dealing with the restrictions on compensation of certain offices which affect only members of the Board.
The ordinance in no way indicates that Board members are to be considered "employees" entitled to employee benefits under Part II and IV. They are, as we said, neither employed nor appointed and thus could not qualify under the definitions referred to. Part II refers solely to employees and their classification, vacation time, leaves of absence, compensatory time, and overtime pay; and Part IV details employment benefits for employees, including accumulated time. As far as we can see the reference to the Board of Aldermen under the definition of "city service" was simply placed in the ordinance because of the compensation section previously mentioned, namely Part III of the ordinance.
Clear and unambiguous language will be held to mean what it plainly expresses [Hawley Coal Co. v. Bruce, 252 Ky. 455, 67 S.W.2d 703 (1934)] and be given a practical construction. Commonwealth v. Trent, 117 Ky. 34, 77 S.W. 39 (1903). Also, words must be construed in light of their common usage. Commonwealth v. Trent, supra.
Thus, a member of the Board of Aldermen could never be construed to be an "employee" of the city under the Constitution, statutes or case law of this state. Nor can it be so construed under the ordinance.
On the other hand, the city could, possibly under its "home rule" authority, specifically provide in an appropriately drawn ordinance, for members of the Board to accumulate vacation time during their respective terms, however, the ordinance in question does not in our opinion accomplish this even by implication.