Request By:
Mr. Murvel Eugene Combs
Corporate Counsel
Lexington-Fayette Urban County
Government
Department of Law
The Municipal Building
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our office to reconsider OAG 81-123, which advised the State Department of Finance to pay vacation leave to employees of the Fayette County Clerk, Jailer, and Sheriff only if the Urban County Council enacted an ordinance providing for leave time policies for employees of those offices.
We wrote on page 2 of that opinion that we could find no statute providing accumulated leave for such employees. However, we said that pursuant to KRS 67A.060, 67.080 and 67.083, the Urban County Council, and the fiscal courts in other counties coming under the application of § 106 of the Kentucky Constitution and KRS 64.345, may enact reasonable ordinances providing for leave time, i.e., for accumulated leave payment upon leaving the local service and taking leave with pay while still in local service. Such leave would be payable out of the "75% account" of the affected office. Thus such leave payments would require: (1) a local ordinance and (2) a corresponding order of the court or fiscal court, as the case may be, relating to necessary office expenses (budget) . See KRS 64.345(2).
You feel that KRS 64.345(5) preempts urban county government from legislating in that area. Under that subsection in Jefferson and Fayette Counties the "compensation allowed to each deputy" shall be fixed at reasonable amounts upon motion of each officer by an order of the circuit court. In all other counties of 75,000 population or more, the compensation is fixed by the fiscal court. Basically, except for the fixing of the compensation by the court or fiscal court, the subsection was designed to be applied uniformly in all counties of 75,000 or more.
KRS 64.345 contains no definition of "compensation". Actually the term "compensation" includes the total consideration paid a governmental officer or employee for public services rendered.
Talbott v. Thomas, 286 Ky. 786, 151 S.W.2d 1 (1941). See also §§ 3 and 171, Kentucky Constitution. Thus the term is broad enough to include pay for leave during government service and upon leaving government service. But the matter of pay for leave does not come into play unless the local legislative body enacts an ordinance expressly providing for leave payment. Leave pay in this situation is not automatic.
In addition, the local legislative provision for payment of compensation for leave time is in no way incompatible with the power of the court or fiscal court, as the case may be, to fix a reasonable compensation, since a leave time ordinance would only mean that the rate of pay fixed by the court or fiscal court would be observed when the worker is on leave or is paid when the worker leaves the service. There is no conflict here at all. The local legislative role of providing that the office budget will embrace the leave time concept is in no way budget legislation. It is personnel legislation. The budgetary function of the court or fiscal court remains as outlined in KRS 64.345.
The budget role of the court or fiscal court in KRS 64.345 was not designed to usurp the legislative role assigned to a county or urban county government. See KRS 67A.060, 67.080 and 67.083.
You suggest that the county and urban county governments lack the power to establish leave with pay. We have cited the statutory authority above. In addition, the courts recognize that a county, of less than 75,000 population, has responsibility and authority for establishing the compensation of deputies of local constitutional officers. See
Funk v. Milliken, Ky., 317 S.W.2d 499 (1958), and KRS 64.530. The application of the leave with pay to such deputies is indeed a logical and authorized extension of its statutory power in that area. Except for the actual fixing of salary, in counties of 75,000 or more, there is no distinction between the counties as relates to compensation fixation and the principle of legislatively providing for leave with pay.
There is simply nothing in KRS 64.345(5) to suggest that the circuit court has the authority to legislate on the "leave with pay" concept. If the court did have such legislative power, it would be unconstitutional under § 28 of the Kentucky Constitution.