Request By:
Ms. Frankie Scott Hager
City Attorney
City of Owensboro
P.O. Box 847
Owensboro, Kentucky 42302
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of April 15 in which the Board of Trustees of the Police and Firefighters' Retirement Fund has asked you to seek our construction of the following underlined portion of KRS 95.862(1):
"'In the event a total and permanent occupational disability occurs, the member shall receive an annuity equal to seventy percent (70%) of his last rate of salary. This benefit shall begin at such time as his salary may cease and shall be paid during his entire lifetime.' (Emphasis added.)"
In connection with the above-quoted section of the statute, you relate the following facts and question:
"The question of when salary ceases was raised in the following fact situation. A patrolman fell on the ice while responding to a call December 27, 1983 at 11:53 p.m. He took a sick day December 28, 1983. On January 4, 1984 he went to the Owensboro-Daviess County Hospital emergency room where a Dr. Humpston diagnosed his problem as arthritis. He returned to the emergency room until May 13, 1984, room until May 13, 1984, during which time he was admitted by Dr. Quader. He was off duty from January 6 until May 13, 1984, during which time he was operated on by Dr. Quader. When he returned to work with a doctor's statement requesting limited physical activity, he was put on a sergeant's desk job. On October 2, 1984 his doctor advised he could not return to his normal duties as a patrolman. The sergeant, whom the patrolman had displaced, wanted his desk job back. Since the patrolman could no longer do the work of a patrolman, he was sent home on medical leave December 7, 1984. The patrolman had sick days and vacation days coming to him which allowed him full pay through January. He was also paid for 14 hours sick leave in February. On March 4, 1985, he applied for service-connected disability, which was granted him March 19, effective March 1, 1985.
"In the interim, the city had continued to pay his fringe benefits, including hospitalization, life insurance and incentive pay. .
"So, the question is: when When did his salary cease? "
KRS 95.862(1) quoted in part above specifically declares that benefits are to begin when the covered employee's salary ceases. No additional prerequisites are required such as the employee's application and letter of recommendation mentioned in KRS 95.863 to which you refer. This latter statute involves a total and permanent disability not occasioned by the duties of the employee. Under the general rule of statutory construction, clear, exact and unambiguous language used in a statute will be held to mean what it plainly states.
Hawley Coal Co. v. Bruce, 252 Ky. 455, 67 S.W.2d 703 (1934) and
Commonwealth v. Harris, 278 Ky. 218, 128 S.W.2d 579 (1939).
Sick leave payments or benefits are generally considered to be a part of the employee's overall compensation earned during the period of his employment and forming a part of his employment contract. See McQuillin, Mun. Corp., Vol. 3, § 12.173(a) from which we quote in addition the following:
"A municipality may provide by ordinance that no payment be made for accumulated sick leave at the time of termination or retirement from municipal employment. Such a law would preclude compensation for unused sick leave to an employee who was not 'sick. ' Nevertheless, where it is determined that a municipal employee should be retired because of an employment-related medical disability, and he or she is 'sick' so as to be otherwise entitled to a sick leave benefit, such a law does not preclude the employee from utilizing all accumulated sick leave standing to his or her credit, prior to the commencement of retirement. "
On the other hand, however, fringe benefits such as hospitalization and life insurance would not be considered part of the employee's salary as held in OAG 75-470 and OAG 84-294, copies attached.
Under the circumstances, we believe that the employee's salary to which you refer ceased in February when his vacation and sick leave payments ran out.