Request By:
Mr. A. James Higgs, Jr.
Attorney at Law
403 McClure Building
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
OAG 84-102 addresses the question as to whether or not a provision in the 1982 state budget, Section 10, which provides for agency payment of administrative and court costs occasioned by the agency's employees obtaining merit hearings before the Personnel Board and later court action, is constitutional. The language in Section 10 provides that the agency of which the complainant is or was an employee shall bear all administrative and court costs involved whenever the Personnel Board or courts "rule in favor of the complainant." (Emphasis added).
In OAG 84-102, we equated "rule in favor of" with the employee's prevailing on every substantive issue. We said that where the employee prevails, that is an indication that the employee acted in good faith in the discharge of his or her duties, free from any negligence, infraction, of rule, or any wrongdoing of any kind, as relates to the employer-employee relationship. This application of absolutism is well founded in view of the rule that when one accepts a public office or employment he assumes the risk of defending himself even against unfounded accusations at his own expense. Board of Comrs v. Casper Nat. Bank, Wyo., 105 P.2d 578 (1940). Certainly an employee should not be rewarded where the employee is guilty of some infraction of rule or law. Such a reward would be against public policy. An employee should be paid and given fringe or other benefits in clear recognition of adequate performance of duties. See § 3 of the Kentucky Constitution, and Roberts v. City of St. Louis, Mo., 242 S.W.2d 293 (1951). Thus a government may indemnify an officer or employee for loss suffered by him while acting in good faith in the discharge of his official duties. But to afford such benefit or protection to every employee when involved in an administrative hearing or court proceeding, regardless of the facts of the case, would be against public policy. See Roberts v. City of St. Louis, above. Any lesser requirement would mean that an employee could deliberately fail to meet standards of rules or statutes and still expect to get the benefit of these administrative and court costs payments by their agency. Importantly, the courts have declared that the constitutionality of legislation must be upheld, unless there is some express or implied provision of the federal or state constitutions which will not allow it to be upheld. Duke v. Boyd County, 225 Ky. 112, 7 S.W.2d 839 (1928). Our construction, based upon constitutional considerations, favors the constitutionality of the legislation in question.
You, in support of a construction that would apparently maximize the agency's paying such costs, contend that something less than the employee's being free from wrong was intended by the budget language. You write that although the employees' letters of appeal to the board rarely set forth the legal theory of the appeal, it frequently develops at the hearings that the reason that an employee filed his appeal is that he feels the punishment was too severe. You cite KRS 18A.095(1), which provides that if the board finds that the action taken by the appointing authority was excessive or erroneous in view of all the surrounding circumstances, the board shall alter, modify, or rescind the disciplinary action. You say that a board's action under KRS 18A.095 in holding that disciplinary action of the agency was excessive, constitutes prevailing or favorable action. You also interject the idea that the state is paying for such expenses, regardless of whether the agency or the board bears the expense.
We are still of the same opinion expressed in OAG 84-102. We construe the budget language to mean that the agency pays the costs where the board or court rules in favor of the employee, i.e., where the employee prevails on all substantive issues, the employee being free from any negligence, malperformance or wrong doing of any kind. To adopt your construction would mean that we run afoul of §§ 3 and 171 of the Kentucky Constitution. The state simply cannot be expected to pay such expenses out of the state treasury where an employee has been determined by the board or court to have been in the wrong in any substantive respect, relating to rules and statutes governing that employee's function. That constitutional principle comes to focus, regardless of whether the agency or the board pays the costs. See Talbott v. Thomas, 286 Ky. 786, 151 S.W.2d 1 (1941); and Lexington v. Hager, Ky., 337 S.W.2d 27 (1960). Your definition is geared strictly to the budget language, but does not take into account the constitutional principles with which we are faced.
We are really saying that if the budget language is to be construed in the light of board action afforded under KRS 18A.095(1), and we concede there is an argument that a favorable ruling is so broad as to include the lessening of disciplinary action, under your construction the budget language would be in violation of §§ 3 and 171, Kentucky Constitution.
CONCLUSIONS
1. Concerning the language in the 1982 budget bill, "whenever the Personnel Board or court rules in favor of the complainant", the term is at best ambiguous. There is no statutory or nonstatutory definition of the language. Even the dictionary definition of "favor" or "favorable" is not dispositive. Even where the board, under KRS 18A.095(1), finds that disciplinary action taken by the appointing authority was excessive, how can it be said that the lesser discipline is advantageous to the employee, except in some minute scale of relativity, since in a larger sense of perspective the employee still loses. In fact, the finding by the board that the agency acted excessively in imposing a discipline upon the employee contains implicitly the concept that the employee deserved some discipline, i.e., the employee was not free from wrong. Thus your concept of a lesser punishment's being a favorable action is overly simplistic and will not bear the scrutiny of analysis.
2. In OAG 84-102 our construction of the subject nonstatutory language of the budget bill is made within the controlling implications of constitutional law. In OAG 84-102 and this opinion we are making no conclusions as to the constitutionality of these nonstatutory remarks in the budget bill, in terms of § 51, Kentucky Constitution.
3. You must carefully note that board or court costs, occasioned by procedures arising out of the discipline of a state employee, can only be effected where the record reflects the employee is "clean", i.e., free from violation of rule or statutory law. This is true regardless of whether the agency or the board pays such costs. Thus we stand on the opinion reached in OAG 84-102.