Request By:
Mr. Mark E. Vogt
Property Valuation Administrator
Kenton County
City-County Building
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Alex W. Rose, Assistant Attorney General
This is in answer to your letter of February 2, 1982, in which you request an opinion concerning the provisions of KRS 132.590. Specifically, you ask four questions:
1. For personnel matters, what recourse for appeal does the deputy of a Property Valuation Administrator (hereafter PVA) have other than the Department of Revenue?
2. Is a PVA deputy a state or county employee?
3. Does a PVA deputy appeal to the State Personnel Board or to the County Fiscal Court?
4. Does the Department of Revenue have the authority to set specifications for PVA deputies and, if so, is the department required to adhere to the rules and regulations of the personnel system when applied to PVA deputies?
In order to answer these questions, it is first necessary to determine the employment status of a Property Valuation Administrator and a deputy PVA. In 1891, the draftsmen of the Constitution provided for the election of an assessor in each county, but also empowered the General Assembly to abolish the office and require that the assessment of property be made by other officers. See Kentucky Constitution, Sections 99 and 104. Accordingly, the legislature eventually replaced the office of the assessor with the position of County Tax Commissioner and later with the position of Property Valuation Administrator and provided that PVAs be elected in each county every four (4) years. See KRS 132.370(1) and (2). PVAs are state officers serving both the Commonwealth and their respective counties. Talbott vs. Burke, 287 Ky. 187, 152 S.W.2d 586 (1941); Jefferson County Fiscal Court vs. Trager, 302 Ky. 361, 194 S.W.2d 851 (1946); Salmon Corp vs. Kentucky Board of Tax Appeals, Ky., 426 S.W.2d 473 (1968); and Allphin vs. Butler, Ky., 619 S.W.2d 483 (1981).
The Kentucky Supreme Court in the most recent case described PVAs in the following words: "They are lected officials and department employees." See Allphin v. Butler, supra.
The status of deputy PVAs has been commented upon by this office on numerous occasions. In OAG 66-759, we stated that the office of County Treasurer is incompatible with the position of Deputy County Tax Commissioner (now PVA) in that a Deputy County Tax Commissioner is considered a deputy state officer.
In OAG 80-246, we concluded that both Circuit Court Clerks and their deputies and PVAs and their deputies are state officers and employees, not city or county officers and employees and therefore they are eligible to participate in the Commonwealth of Kentucky Public Employees Deferred Compensation Plan as state employees.
In OAG 80-287, we concluded that PVAs and deputy PVAs are not part of the classified service nor covered by the rules applicable to certain non-classified positions enumerated in KRS 18.140. We concluded that the PVA and the Department of Revenue could authorize a reasonable allowance for earning and taking sick and annual leave and that should they follow the rules of the Personnel Board for earning and taking sick leave and annual leave, a precedent would be established for considering such procedure as a reasonable allowance and as meeting statutory and constitutional requirements.
In OAG 80-351, we concluded that all PVA employees are state employees and that PVA employees funded by city contributions are to be treated no differently than other PVA employees since all the employees of the PVA are paid with state funds. We cited the fact that KRS 132.645 expressly provides that PVA deputies and other authorized personnel must be paid solely from the state treasury.
Several statutes must be reviewed in defining the relationship of the PVA office to the Department of Revenue and the status of the PVAs and the deputies. KRS 132.590(6) states, in pertinent part, as follows:
". . . Each property valuation administrator may appoint any persons approved by the department of revenue to assist him in the discharge of his duties. Each deputy must be more than twenty-one (21) years of age and may be removed at the pleasure of the property valuation administrator. The salaries of deputies and other authorized personnel shall be fixed by the property valuation administrator in accordance with the grade classification system established by the department of revenue and shall be subject to the approval of the department of revenue. Any deputy property valuation administrator employed, or promoted to a higher position may be examined by the department of revenue in accordance with standards of the department of personnel, for the position to which he is being appointed or promoted. No state funds available to any property valuation administrator's office as compensation for deputies and other authorized personnel or for other authorized expenditures shall be paid without authorization of the department of revenue prior to the employment by the property valuation administrator of deputies or other authorized personnel or the incurring of other authorized expenditures. "
Other subsections of KRS 132.590 provide a grade classification for PVAs and provide that the grade classification system must be equivalent to the grade classification system for state employees as established by the Department of Personnel. The statute authorizes the Department of Revenue to make grade classification changes corresponding to those approved for department employees and extends the grade classification system to deputy PVAs and other authorized personnel of the PVA office. Additionally, KRS 132.370(3) provides as follows:
"The property valuation administrators and all deputies and assistants of their offices who qualify as full time employes, shall be eligible for participation in the provisions of KRS 18.410, 18.510 through 18.600 and 61.610 through 61.692."
These statutes provide PVAs and deputy PVAs with eligibility for life insurance, health insurance, participation in the public employees deferred compensation plan and the Kentucky Employee Retirement System. Each of these programs requires that a person receiving benefits be defined as an employee of the state. KRS 131.130 states, in pertinent part, as follows:
"Without limitation of other duties assigned to it by law, the following powers and duties are vested in the department of revenue:
(1) The department may make rules and regulations, and direct proceedings and actions, for the administration and enforcement of all tax laws of this state."
Based upon the above, deputy PVAs are deputy state officers and state employees. The personnel rules for PVAs and deputy PVAs set out in Chapter 132 clearly delineate them from other state employees in that they are not employed under the merit system and are not covered by the rules applicable to the unclassified service promulgated by the Department of Personnel. PVAs and their deputies are employed under a grade classification system established by the Department of Revenue which closely parallels that of the unclassified service. As Circuit Court Clerks and their deputies are under the exclusive authority of the Administrative Office of the Courts although clearly state employees, so also are PVAs and their deputies state employees, not under the rules and regulations of the State Personnel Board, but rather under the direct administrative control of the Department of Revenue. The Department of Revenue has established administrative control of their personnel and fiscal affairs and created a policy manual covering expenditures, grade classifications and compensation, and office administration pursuant to the department's general rule-making authority.
Having determined the above, the answers to your specific questions are as follows:
1. A deputy PVA has no recourse for appeal other than the Department of Revenue. If a deputy PVA believes that the department is misapplying its statutory authority to administer the PVA personnel system, he may seek judicial review of the department's action in circuit court. Venue would lie in the Franklin Circuit Court since the main office of the Department of Revenue is located in Frankfort and the action forming the basis for the litigation would occur in Frankfort.
2. PVA deputies are state rather than county employees.
3. Neither the State Personnel Board nor the County Fiscal Court has any appeal authority over the decisions of the Department of Revenue regarding deputy PVAs.
4. The Department of Revenue has the authority to set specifications for deputy PVAs if it does so in a reasonable manner. The department is not required to adhere to the rules and regulations of the personnel system when applied to the PVA deputies, but is required to establish an administrative organizational structure and to operate within standard personnel policies pursuant to the statutory guidelines contained in KRS Chapter 132. A system that is comparable to that utilized by the Department of Personnel for the classified service or in the regulations governing the unclassified service is reasonable for this purpose.