Request By:
Hon. William Murphy Howard
Harlan County Attorney
Court House
Harlan, Kentucky 40831
Opinion
Opinion By: Steven L. Beshear, Attorney General; Patrick B. Kimberlin, III, Assistant Attorney General
This is in response to your recent letter to our office wherein you ask several questions pertaining to KRS 61.552 which was amended by the last session of the Kentucky General Assembly. You point out that KRS 61.552(8)(c) permits any county which is participating in the County Employes Retirement System (CERS) to purchase current service, between July 1, 1958 and the participation date of that county, for its former employes who were employed by that county on or before July 1, 1958 but before the county's participation date. Harlan County, which initiated its participation in the CERS in 1974, decided to purchase at the time of participation the prior service for each of its employes. KRS 78.530(3)(a).
Upon the recent amendment of KRS 61.552 five former employes of Harlan County have now requested the Harlan County Fiscal Court to purchase for them their service for the time they worked for Harlan County prior to the county's participation in the CERS. You point out that three of these former employes now work for the Commonwealth of Kentucky and the other two are presently employed by Harlan County. You now ask the following questions:
(1) If Harlan County purchases retirement for service prior to participation date of the County for the two present County employes, will the County be liable to the three state employes who have applied for like treatment?
It is our opinion that Harlan County may purchase current service between July 1, 1958 and the participation date of Harlan County in the CERS for the two County employes pursuant to KRS 61.552(8)(a). The purchase of that service credit for those two employes under KRS 61.552(8)(a) would not, in our opinion, make Harlan County liable to the other three former employes who are now employed by the Commonwealth of Kentucky since the latter, if eligible for any prior service at all, would be eligible under a different statutory section, KRS 61.552(8)(c).
(2) Would the County be liable in the same circumstances for those who are not employed either by the state or county under the same circumstances?
We assume from the above question that what you are asking is: Should Harlan County purchase service credit for former employes who are no longer employed by Harlan County under the authority of KRS 61.552(8)(c), would Harlan County be liable to all such employes? It is our opinion that KRS 61.552(8)(c) is operative only at the discretion of the particular agency involved, such as Harlan County. However, once Harlan County chooses to purchase current service pursuant to that statutory section, it must purchase such service for all employes similarly situated who make the request upon the county assuming that the county financially can comply with said request. Otherwise, for Harlan County to pick and choose among former employes in purchasing current service might very well constitute a violation of equal protection, discriminatory practices and the danger of lawsuits involving alleged violation of civil rights.
(3) Has the County already laid themselves open for liability because they purchased retirement for past services for those who were employed by the county on the county's participation date?
We assume you are referring to the purchase by an agency such as yours of service credit for all its employes at the time the agency initially begins its participation in the CERS. KRS 78.530(3)(a). In our opinion purchase of service credit at the time of initial participation pursuant to KRS 78.530(3)(a) does not in any fashion whatsoever expose the county to liability to individuals who have since left the county and gone to work for other agencies or organizations or private concerns, or those employes of the county who have since left the county and now have come back.
In passing, we would note that should Harlan County decide to refuse to purchase current service for any of its former employes under KRS 61.552(8)(c), which is one of its options, the former employe may purchase his own service credit at his own cost if he chooses to do so. Thus, refusal by Harlan County to purchase such service credit does not foreclose the former employe from obtaining such service credit if he is willing to pay for the cost of it.