Request By:
Mr. William D. Probus
Harrison County Attorney
201 Elks Building
Cynthiana, Kentucky 41031
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise the question as to whether the county judge executive would be considered a county employee for purposes of fringe benefits afforded county employees, generally. We covered the range of such benefits and as to who is considered an employee in OAG 84-203. It did not embrace the local constitutional officers. The county pays the employer share of both social security and state retirement for the county judge executive, but that is specifically provided for by statute. See KRS 61.420(3) and 61.510(5), defining "employe", in connection with social security for public employees and employees retirement system, as including all persons designated officers (elected and appointed). See also Marsh v. Government of Virgin Islands, (Dist. Ct., Virgin Islands, D. St. Croix, 1977) 431 F.Supp, 800, where the court found that certain statutes included "officers" within the term "employees", for purposes of annual leave.
There is no problem about classification, in terms of the Federal Fourteenth Amendment, where the statutory classification rests upon grounds relevant to the achievement of the state's objective. McGowan v. Maryland, 366 U.S. 420, 426, 81 S. Ct. 1101, 1105, 6 L. Ed. 2d 393 (1961).
The county judge executive is actually the chief executive officer of the county, as well as a member of fiscal court. Symbolically, he is in the role of employer, not employee. See KRS 67.710. In the absence of a statute, the county judge executive cannot be considered an employee for fringe benefits generally afforded county employees. If the county judge executive, as a member of fiscal court, is to establish a fringe benefit for himself, the General Assembly would have to authorize it in a clear and unambiguous statute. They vote on their salaries, but as authorized by statute. See KRS 64.527 and 64.530.
Note that in KRS 64.530(1) it is provided generally that "the fiscal cosurt shall fix the compensation of every county officer and employe. . . ." (Emphasis added). . The statute recognizes the basic classifications of officer and employee, since the county officer generally pursues the employer role, except as otherwise provided by statute.
A public office is clearly distinguished and delineated from a mere employment. The courts have characterized a public office as one possessing a delegation of a portion of the sovereign power of government, authority to exercise some portion of the sovereign power, independent of any superior human authority other than a statutorily prescribed general control. Lasher v. Commonwealth, Ky., 418 S.W.2d 416 (1967) 417. A public office, as public employment, requires five elements as pointed out in Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947) 817.
The Colorado Court of Appeals, in Evert v. Ouren, Colo., 549 P.2d (1976) 794, pointed out that the terms "officer" and "employee" are not interchangeable, and thus must be distinguished, depending upon statutory treatment. The Supreme Court of South Carolina, in State v. Crenshaw, S.C., 266 S.E.2d 61 (1980), observed that the criteria to be considered in making the distinction between an officer and an employee include whether the position was created by the legislature; whether the qualifications for appointment are established; whether the duties, tenure, salary, bond and oath are prescribed or required; whether the one occupying the position is a representative of the sovereign; among others. See also Robbin v. Brewer, Fla., 236 So.2d 448 (1970) 451.
Thus where a statute contains the term "officer", as concerns a fringe benefit, and the statute does not spell out any specific definitional qualification, the case of Howard v. Saylor, above, containing the five common law elements making up an "office", would govern.
Next, you ask whether the county judge executive, if not considered an employee for general fringe benefits purposes, could participate in the county health insurance program, with consent of fiscal court, provided the premiums for his coverage were paid out of his salary or expense allowance of his office. In the absence of a statute so providing, we doubt that his premiums could be funded out of the county treasury, for reasons given above. Where the total premium would be his own personal and private expense, and his participation would in no way be disadvantageous for the county employees in the program, we see no objection.