Request By:
Thomas C. Greenwell, Commissioner
Department of Personnel, and
Arthur Hatterick, Jr., Executive Director
Personnel Board
Room 372, Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Martin Glazer, Assistant Attorney General
You have both sought an official opinion of this office as to whether either the Commissioner of Personnel or the Personnel Board has the statutory authority to promulgate regulations on the subject of nepotism, or barring same, whether individual agencies could, by administrative regulation or policy, implement such.
You advise that neither KRS 18A.030 pertaining to the duties of the Commissioner of Personnel nor KRS 18A.075 pertaining to the Personnel Board's duties specifically grants authority on this subject matter.
You also cite KRS 13A.120 which prohibits an administrative body from promulgating administrative regulations when it is not authorized by statute to regulate the particular subject matter involved in the regulation.
While the aforesaid statutes are pertinent, we must actually look at the Personnel Commissioner's regulatory authority under KRS 18A.110 and KRS 18A.155.
The subject matter thereunder involves applications and examinations, classification plans, attendance, leave and other subjects. We can find no specific authority for promulgating a regulation restricting the employment of persons related by blood or marriage, commonly called "nepotism. "
The Personnel Board's regulatory authority is encased in KRS 18A.0751. It deals in part with appeals, demotion, dismissal, fines, suspensions, and other disciplinary measures. Again, we can find no specific statutory authority authorizing the Board to promulgate a regulation on "nepotism. "
From reviewing the regulatory authority of the Personnel Commissioner and the Board, the latter's regulatory authority is to be limited to matters involving the appeals process and post-appeals process such as reinstatement, transfer, promotion, and employee grievances.
The Personnel Commissioner's regulatory authority deals primarily with the hiring, salary, examination of applicants, leave, etc., of employees.
We believe that the question may be answered by KRS 18A.110(3)(b) and (c) which provide:
(b) Administrative regulations promulgated by the commissioner shall not expand or restrict rights granted to, or duties imposed upon, employes and administrative bodies by the provisions of this chapter; and
(c) No administrative body other than the department of personnel shall promulgate administrative regulations governing the subject matters specified in this section.
This section deals with the Commissioner's regulatory authority and KRS 18A.0751(2)(b) and (c) contains the same language as it applies to the Board's regulatory authority.
In both areas, the individual agency has no authority to promulgate regulations on subjects that either the Personnel Commissioner or Personnel Board have been given.
Unless there is specific statutory authority given to a particular agency, we do not see how an individual agency could promulgate a regulation dealing with nepotism, nor could it do so on the basis of policy, pursuant to the prohibitions contained in KRS 13A.120(1)(a) and (b), and KRS 13A.130.
CONCLUSION
Neither the Personnel Commissioner nor the Personnel Board has authority to promulgate a regulation concerning "nepotism. "
Likewise, in the absence of specific statutory authority given to a specific individual agency, such agency could not promulgate such a regulation nor adopt a policy regulating the subject under the prohibition of KRS 13A.120 and KRS 13A.130.