Request By:
Mr. Prentice Harvey
Executive Director
Kentucky County Judge/Executive
Association
400 Thistleton Terrace
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You refer to certain opinions of this office dealing with fringe benefits afforded to employes of local government.
We concluded in OAG 84-324 and 84-332 that such fringe benefits cannot be paid to the county constitutional officers.
Specifically, you raise the question as to the county government's payment of health insurance premiums of elected county officials. KRS 79.080(2) expressly permits any county government to establish and operate plans for the payment of health maintenance organization coverage or hospitalization benefits to their "employes". While KRS 79.080(2) seems to stress health maintenance organizations, it does include hospitalization benefits. Thus, in order that the statute is to be removed from the realm of absurdity, it is our view that the courts would give it a broad construction to make sense, such that it can be said that the subsection authorizes a county or city government to provide for the health of its employes by way of health maintenance organization coverage or group health insurance coverage. See
Swift v. Southeastern Greyhound Lines, 294 Ky. 137, 171 S.W.2d 49 (1943).
You will note that the term "employes", as found in KRS 79.080(2), is not defined in KRS Chapter 79. That term is not defined in KRS 446.010, a definitional statute relating to the construction of statutes. It is true, as you suggest, that in particular statutes the term can embrace other than what is usually considered employes, as contrasted with the term "officer". In fact, in OAG 84-332, we pointed out that KRS 61.420(3) and 61.510(5), relating to social security for public employes and employes retirement system, include all persons designated as "officers". See also
Marsh v. Government of Virgin Islands (Dist. Ct. Virgin Islands, D. St. Croix, 1977) 431 F.Supp. 800.
An "officer" of "office" has been defined by the courts in terms of five (5) requisite elements. See
Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947) 817. The court stressed that in a number of cases it had dealt with the distinction to be made between an officer and an employe. It mentioned the difficulty in particular cases of drawing the line between the position of an employe and that of an officer. Thus historically the court arrived at the objective test of an "office" in terms of five (5) coexisting elements.
Since the appellate court has obviously felt it had a duty to declare by common law just what an office is, as distinguished from an employe position, it logically follows that the General Assembly, if it is to carefully embrace in particular legislation officers as well as employes under the statutory term "employe", must say so in literal and explicit langugage. It is easy for one to say that a statutory term is ambiguous. However, KRS 79.080 (2) is not ambiquous, and thus the term "employe" must be interpreted in its bare literal form, rather than giving it a broad and generous sweep born out of the imagined ambiguity. In
Bailey v. Reeves, Ky., 662 S.W.2d 832 (1984) 834, the Supreme Court of Kentucky wrote that it was required to give the words of a statute written by the legislature their plain meaning. Thus, in the absence of a statute's including expressly "officers" in the term "employes", the plain meaning of the word "employe" could only extend to those people employed by local governments who are not officers.
It is our view that where a statute merely uses the term "employe", unless the statute explicitly includes "officers" in that term, the word "employe" will not embrace "officers".
The Court of Appeals, in Turner v. Cole, Ky.App., 559 S.W.2d 170 (1977) 173, held that a city ordinance, providing that provisions of the ordinance and of civil service statutes applied to all "employes" in the city police and fire departments, did not include the city police chief as an "employe", in view of the fact that the police chief was an officer and not an employe, and in view of the fact that the city council could have included the chief of police by use of the phrase "employes or officers", but did not do so. That case is dispositive of your question, as relates to KRS 79.080(2).
See also OAG 84-203, on the meaning of "county employes", including various statutes.
You have referred, however, for our consideration, to KRS 304.18-020(1)(a). That statute defines "group health insurance" to be that form of health insurance covering groups of persons, as defined in that section. The statute says in part that group health insurance may be extended under a policy issued to an employer, insuring employes of such employer for the benefit of persons other than the employer. It further states that "a policy issued to insure employes of a public body may provide that the term 'employes' shall include elected or appointed officers." (Emphasis added).
KRS 79.080(2) and KRS 304.18-020(1) both concern group health insurance. As was said in
Gearhart v. Kentucky State Board of Education, Ky., 355 S.W.2d 667 (1962) 670, "a common purpose entwines them." Thus the court in that case construed certain statutes of common purpose together under the doctrine of in pari materia. In
Economy Optical Co. v. Kentucky Board of Opt. Exam., Ky., 310 S.W.2d 783 (1958) 784, the court declared that statutes in pari materia should be construed together in order to harmonize and give effect to the provisions of each.
See KRS 304.1-130, providing that provisions of the insurance code relative to a particular kind of insurance shall prevail over provisions relating to insurance in general. While KRS 79.080(2) mentions health maintenance organizations, see KRS 304.38-200, stating that Subtitle 5 (Kinds of Insurance) applies to Subtitle 38 (H.M.O.). KRS 304.5-160(2)(b) and (d) provides that the health insurance contract coverage in subsection (1) shall be applicable to all contracts or policies of all group health insurers subject to Subtitle 18 of KRS Chapter 304, and to all health maintenance organizations subject to Subtitle 38 of KRS Chapter 304. This evidences an interlocking of the health maintenance organizations concept and the group health insurance concept. See also KRS 67. 080(1)(a) and 67.083(3)(d).
CONCLUSION
It is our opinion that in reading KRS 79.080(2) and KRS 304.18-020 together, any fiscal court is authorized to establish a program whereby the county will pay for the group health insurance coverage premiums on the part of the county's employes, its elected county officials, and their deputies under proper budgeting procedure. OAG 84-324 and 84-332 are modified accordingly.