Request By:
Michael L. Judy
Johnson & Judy
326 West Main Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You seek an opinion of this Office as to whether there is a violation of KRS 18.310 and 18.320 if a group of state employees establish a legal defense fund and accept voluntary contributions. And, you ask whether the operators of such fund can advise state employees of its nature and existence and seek contributions.
KRS 18.310 has been recodified as KRS 18A.140 (Section 28, Chapter 448, 1982 Acts, H.B. 415) since July 15, 1982. That statute prohibits (1) discrimination because of an employee's religion or political opinion or affiliation, ethnic origin, sex, handicap, or for age between 40 and 70.
Subsection 2 forbids influence to secure positions in the classified service for the purpose of influencing the vote or political action of any person.
Subsection 3 forbids political assessments or service and solicitation of such.
Subsection 4 forbids various types of political activity of merit system employees.
KRS 18.320, now codified as KRS 18A.145, forbids, in part, the payment of money, service, or other consideration on account of an appointment to a position in the classified service.
The tenor of those two statutes is to forbid a person from using his political influence to obtain a job in the merit system, and forbids merit system employees from paying assessments of political contributions, or engaging in various types of partisan, political activity.
As we understand the nature of your organization, its activity and purpose is to aid employees in appealing their assignments of classification under the new system and could be utilized to represent employees to obtain and protect their economic perquisites. In short, it could result in an informal employees' union.
As long as your orgnization does not become integrated into being a part of a partisan political campaign or activity, we do not see wherein the aforesaid statutes are violated by the activity which you indicate will be fostered.
Employees, even public employees, have a right to organize and to seek economic advantages for themselves. In Board of Trustees of the University of Kentucky v. Public Employees Council No. 51 AFL-CIO, Ky. 571 S.W.2d 616 (1978), the Court held:
"We are of the view that this right [to organize to carry out employees' collective wishes] emanates from the rights of freedom of expression and association guaranteed by the Constitution of Kentucky, the United States Constitution, and the Board [of Trustees] may not, without showing a paramount public interest, lawfully prohibit its nonacademic employees from membership in a union." 571 S.W.2d at 620.
Of course, the Court went on to advise that the public agency was not bound to recognize or negotiate with such an entity (absent statutory requirement).
So, if employees have an inherent constitutional right to band together, it would seem that they have the right to use the means for advancing such purpose by voluntarily contributing to such an entity as long as the activity does not result in the engagement into partisan political campaigns nor the other activities forbidden by the forecited statutes.