Request By:
Dick Robinson
Secretary, Kentucky Personnel Board
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You seek an opinion on behalf of the Kentucky Personnel Board as to various questions arising out of possible sexual harassment incidents.
Specifically, you seek clarification of the following:
1. the legal bases for the Board's jurisdiction in such matters;
2. the legal relationship, if any, between proven allegations of sexual harassment and the proscriptions against sexual discrimination in Kentucky and federal statutes and regulations;
3. the specific enforcement powers available to the Personnel Board if, in fact, there is a finding of sexual harassment by the Board;
4. the Board's jurisdiction and authority in such matters where:
a. the complaining state employee is a non-merit employee;
b. the accused is a merit system employee;
c. the accused is a non-merit employee; and
d. the accused is a constitutionally elected official;
5. the effect and relationship of the penal provisions in KRS 18.990 regarding allegations and/or findings of sexual harassment.
We shall try to respond, as specifically as possible, considering the fact we do not have specific fact situations before us.
I.
KRS 18.310(1) provides in pertinent part that: "No person shall be appointed or promoted to, or demoted or dismissed from, any position in the classified service, or in any way favored or discriminated against with respect to employment in the classified services because of his . . . sex . . . ."
Likewise, KRS 18.340 provides:
"The personnel board and the commissioner shall see that rules, regulations and practices meeting federal merit system standards shall, where such standards apply as a prerequisite for federal grants-in-aid, be in effect continuously, notwithstanding any other provision of KRS 18.110 to 18.360."
The federal Civil Rights Act of 1964, as amended, (42 U.S.C. 2000 et seq.) and the regulations and guidelines thereunder, forbid sexual discrimination by employers.
Therefore, both the Personnel Board and the Department of Personnel have jurisdiction to consider sexual discrimination by state government employers under their jurisdiction.
Pursuant to KRS 18.170(3), the Board may.
"make investigations, either on petition of a citizen, taxpayer, interested party, or on its own motion, concerning the enforcement and effect of KRS 18.110 to 18.360, and to require observance of its provisions and the rules and regulations made pursuant thereto. . . ."
It can also, pursuant to subsection (4) of that same statute, "hear appeals from . . . officers or employes serving under the personnel system created by KRS 18.110 to 18.360. . . ."
Where charges of sexual discrimination have been made, if they arise by classified employees who have been so discriminated as to be penalized and have sought appeal pursuant to KRS 18.270, the Board could hold appeal hearings into such charges.
If they do not arise by appeal, the Board could conduct an investigation, including a hearing type of investigation [we shall discuss procedure later in this opinion].
II.
The question has arisen as to the legal relationship between the term "sexual harassment" and proscription against "sexual discrimination. "
Kentucky's proscription in the personnel law against sexual discrimination originates from the federal Civil Rights Act of 1964, cited previously.
Since we have little Kentucky legal precedent, we must look to federal courts for guidance as to how such courts have interpreted the federal law and its prohibition against sexual discrimination.
In Vinson v. Taylor, 22 E.P.D. § 30,708 (U.S.D.C. D. OF C. 1980), it was held that Title VII of the federal Civil Rights Act protects employees who are victimized by sexual harassment via the prohibition against sexual discrimination in employment. The latest case to our knowledge on that subject is one handed down by the United States Court of Appeals, District of Columbia, on January 12, 1981, styled Bundy v. Jackson, 79-1693, in which Chief Judge J. Skelly Wright held that sexual harassment by itself was a violation of law and did not require additional proof that the employee was penalized or lost specific job benefits.
Other cases in which sexual harassment has been held to be covered under the prohibition against sexual discrimination are: Barnes v. Costle, 14 E.P.D. § 7755, 183 U.S. App. D.C. 90, 561 F.2d 893 (1977); Miller v. Bank of America, 20 E.P.D. § 30,086, 600 F.2d 211 (9th Cir. 1979); Tompkins v. Public Service Electric & Gas, 15 E.P.D. § 7954, 568 F.2d 1044 (3rd Cir. 1977):
Healey v. Johns-Manville Corp., 451 F.Supp. 138 (D. Colo 1978); Williams v. Saxby, 12 E.P.D. § 11,130, 413 F.Supp. 654 (D. D.C. 1976, Rev. and Remanded 190 U.S.App. D.C. 343, 587 F.2d 1240 (1978).
III.
Should the Personnel Board find sexual harassment resulting in sexual discrimination, if the complainant is a merit system employee, the Board could order the Commissioner of Personnel (via 18.190(13)) to withhold all or line items on a payroll against the offending person or department (KRS 18.260(1)) whether the offending person is a merit, non-merit, appointed or elected official. KRS 18.260 authorizes the Commissioner of Personnel to certify all payrolls of agencies within his jurisdiction. Such is not limited to payrolls of statutory departments only. They include constitutional departments as well.
If the only complainant is a non-merit employee, we doubt that the Board has jurisdiction of the matter since the Board has jurisdiction to promulgate rules for classified employees (KRS 18.210). The Board's reason for existing is to protect merit system employees and the merit system itself. However, in such case, it can refer non-merit complaints or investigations to the Commissioner of Personnel.
The latter performs a dual role, one as secretary to the Board and as Commissioner to a Department which aftects the bulk of central state government employment, both merit and non-merit.
In the case of discrimination against a non-merit employee, the Commissioner of Personnel has jurisdiction (via rule-making power of KRS 18.220). He may, on his own, withhold payroll via KRS 18.260.
On course, the person whose salary has been withheld may utilize the procedures of KRS 18.260(4) by filing suit in the circuit court of the county of his residency to contest said decertification.
IV.
An employee may bring criminal charges, if the action complained of violates any of the proscriptions against sexual offenses enumerated in KRS Chapter 510, or the penal provisions of KRS 18.990. The fact that there are concurrent penal and civil procedures available, will not negate one or the other, because KRS 500.040(2) provides:
"This code shall not bar, suspend or otherwise affect any right or liability to damages, penalty, forfeiture or other remedy authorized by law to be recovered or enforced in a civil action."
KRS 446.070 also provides:
"A person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation."
V.
The Board, or Commissioner of Personnel as the case may require, can also refer to the local county or commonwealth attorney evidence of criminal violations pursuant to KRS 18.990. However, it is doubtful that subsection (2) of KRS 18.990 can apply to a constitutional officer since that subsection deals with "appointment or employment." A state-wide constitutional officer serves a constitutional term, not an appointment or an employment. In the absence of constitutional authority for a statutory method of removal, he cannot be removed except by impeachment (Constitution, Section 68). See OAG 72-289, copy attached.
The Board or Commissioner of Personnel can also reler cases to the Commission on Human Rights which has statutory authority under KRS Chapter 344. The Commission can investigate, conciliete grievances, hold hearings, enter into consent decrees, require cessation of the action, require payment of action, require payment of damages to the complainant, and a number of other remedies (KRS 344.230).
VI.
Should the Board have sufficient cause to believe that sexual harassment has resulted in sexual discrimination against employees, the Board can conduct hearings in public or in private (authorized by KRS 61.810(6) as an exception to the open meetings law), take the evidence of the complainant under oath and permit the person who is being charged to appear and crossexamine the witness.
The Board could invite the person charged to testify, if he so desires. But, if he does, he is subject to crossexamination by the complaining witness (or counsel) or members of the Board or its representatives.
Under the aforesaid procedure, the Board will protect due process rights of all parties and protect their reputations should the charges be without substance.
If the Board finds the charges justified: (1) it can utilize the procedure for decertirication of the payroll, or request the Commissioner to do so where the complainant is not a classified employee; (2) refer criminal charges to the appropriate county or commonwealth attorney; or (3) refer the matter to the Commission on Human Rights for application of its jurisdiction.
Since your request has been general in nature, our reply is necessarily general in import. More specific advice can only result from specific fact situations.