Request By:
Robert M. Burnside, Executive Director
Kentucky Retirement Systems
Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Opinion of the Attorney General
In its 2008 extraordinary legislative session, the Kentucky General Assembly enacted House Bill 1, which amended several statutes affecting the Kentucky Employees Retirement System ("KERS"), County Employees Retirement System ("CERS"), and State Police Retirement System. Among these statutes is KRS 61.592, which governs hazardous-duty classification for employees participating in the KERS and CERS. Robert M. Burnside, Executive Director of the Kentucky Retirement Systems, has requested an opinion addressing the following questions:
1. What does the law require the Board of Trustees of the Kentucky Retirement Systems to do in administering KRS 61.592 as amended by Section 17 of House Bill 1?
2. Does the enclosed proposed ordinary regulation 105 KAR 1:130 of the Board of Trustees of the Kentucky Retirement Systems conform to the requirements of KRS 61.592 as amended by Section 17 of House Bill 1?
In keeping with the usual practice of this Office, written comments were requested and received from affected entities, including the Office of the Governor, Kentucky League of Cities, Kentucky Association of Counties, Kentucky Fire Commission, Kentucky Association of Fire Chiefs, Kentucky Professional Fire-fighters, and Kentucky Firefighters Association, have been given due consideration.
Role of the Board of Trustees
KRS 61.592(2), as amended, states as follows:
(a) Each employer may request of the board hazardous duty coverage for those positions as defined in subsection (1) of this section. Upon request, each employer shall certify to the system, in the manner prescribed by the board, the names of all employees working in a hazardous position as defined in subsection (1) of this section for which coverage is requested. The certification of the employer shall bear the approval of the agent or agency responsible for the budget of the department or county indicating that the required employer contributions have been provided for in the budget of the employing department or county. The system shall determine whether the employees whose names have been certified by the employer are working in positions meeting the definition of a hazardous position as provided by subsection (1) of this section.
(b) Each employer desiring to provide hazardous duty coverage to employees who begin participating in the County Employees Retirement System on or after September 1, 2008, may request that the board approve hazardous duty coverage for those positions that meet the criteria set forth in paragraph (b) of subsection (1) of this section. Each employer shall certify to the system, in the manner prescribed by the board, the names of all employees working in a hazardous position as defined in paragraph (b) of subsection (1) of this section for which coverage is requested and a job description for each position or employee. The certification of the employer shall bear the approval of the agent or agency responsible for the budget of the department or county indicating that the required employer contributions have been provided for in the budget of the employing department or county. Each employer shall also certify, under penalty of perjury in accordance with KRS Chapter 523, that each employee's actual job duties are accurately reflected in the job description provided to the systems. The systems shall determine whether the employees whose names have been certified by the employer are working in positions meeting the definition of a hazardous position as defined in paragraph (b) of subsection (1) of this section. The board shall have the authority to remove any employee from hazardous duty coverage if the board determines the employee is not working in a hazardous duty position or if the employee is classified in a hazardous duty position but has individual job duties that do not meet the definition of a hazardous duty position or are not accurately reflected in the job descriptions filed by the employer with the systems.
With regard to the first question presented, KRS 61.592(2) as amended charges the Board of Trustees with three basic functions. First, the Board is to prescribe the manner in which a participating employer certifies to the KERS or CERS the names of employees working in hazardous positions. Second, the Board is to approve or decline hazardous duty coverage for employees upon certification by the employer. Third, the Board may remove employees from hazardous duty coverage if it finds they are improperly classified. Only the third of these functions is newly articulated as such in the 2008 amendment. It is the specific manner of discharging these functions, as reflected in the proposed administrative regulation and accompanying forms, that constitutes the more complex question.
The 2008 amendment adds a new subsection (1)(b) to KRS 61.592 to distinguish two categories of employees: those who began participating in the CERS on or after September 1, 2008, and, in the other category, the more senior CERS members and employees participating in the KERS. The amended version of KRS 61.592(1) states, in pertinent part, as follows:
(a) "Hazardous position" for employees participating in the Kentucky Employees Retirement System, and for employees who begin participating in the County Employees Retirement System before September 1, 2008, means:
(b) "Hazardous position" for employees who begin participating in the County Employees Retirement System on or after September 1, 2008, means police officers and firefighters as defined in KRS 61.315(1), 1 paramedics, correctional officers with duties that routinely and regularly require face-to-face contact with inmates, and emergency medical technicians if:
(Emphasis added.) We note at the outset that on the face of the statute, the scope of the "if" clause in KRS 61.592(1)(b) is ambiguous as to whether the following restrictive provisions 1 and 2 are applicable only to emergency medical technicians, or to all the positions listed in (1)(b). Had a comma been placed before the word "if," the subsequent clause would unambiguously apply to all classes of employees. As the statute is written, however, it contains a potential ambiguity that must be addressed in the context of the Systems' proposed amended ordinary regulation.
The proposed amendment to 105 KAR 1:130
The Kentucky Retirement Systems have tendered to this Office a proposed amendment to ordinary administrative regulation 105 KAR 1:130. Section 2(2) of the proposed amended regulation states in part: "A county participating in the [CERS] may provide hazardous position coverage upon adoption of a resolution by its governing authority to transfer eligible positions from nonhazardous to hazardous position coverage. "
The proposed regulation provides, in keeping with the amended KRS 61.592, that "[e]mployees working in hazardous covered positions in the [CERS] that were approved for hazardous coverage prior to September 1, 2008, shall continue to participate as hazardous covered employees as long as they remain in a position that had been approved for hazardous coverage prior [sic] September 1, 2008." (Proposed 105 KAR 1:130, Section 2(2)(a).) 2 Employees who began participating on or after September 1, 2008, are not to be reported as in hazardous positions until the Board approves the position under the new statutory definition. (Proposed 105 KAR 1:130, Section 2(2)(a).)
Section 4 of the proposed regulation requires employers to complete Form 7025 (Position Questionnaire) when certifying the duties of KERS employees and CERS employees who began participating before September 1, 2008, in positions for which an employer seeks to change coverage from non-hazardous to hazardous. Employers are likewise required to certify the duties of CERS employees who began participating on or after September 1, 2008, when hazardous coverage is requested, but on another Position Questionnaire, Form 7026. Form 7026 is based on the revised definition of "hazardous position" appearing in KRS 61.592(1)(b).
The Systems have apparently interpreted the restrictive provisions 1 and 2 in KRS 61.592(1)(b) as applying to all of the positions listed in that subsection; namely, police officers, firefighters, paramedics, correctional officers with duties that routinely and regularly require face-to-face contact with inmates; and emergency medical technicians. This interpretation is evident in the formatting of proposed Form 7026, "Position Questionnaire for Employees with a CERS Participation Date On or After September 1, 2008." The form lists different categories of positions and asks related questions as follows:
Please select the appropriate classification and answer all that are applicable.
. Police Officer
. Firefighter Does this position require active fire suppression? .Yes . No
. Paramedic
. Correctional Officer Does this position routinely require face to face contact with inmates? . Yes . No
. Emergency Medical Technician
. Other Specify:
Is this position required to have Peace Officer Professional Standards and Certification? .Yes . No
If no, is this position required to carry a firearm? . Yes . No
Does this position require frequent exposure to a high degree of danger or peril and a high degree of physical conditioning? . Yes . No
Are the employee's duties primarily clerical or administrative? . Yes . No
Whereas the question about regular face-to-face contact with inmates is restricted to correctional officers, the last two questions on the list are presented as applying to all classes of employees with a participation date after September 1, 2008. The Systems, therefore, have evidently read KRS 61.592(1)(b) as though a comma had been inserted before the "if" clause embodied in Subsections 1 and 2. The inaccuracy of this reading can be deduced from certain other applicable law that requires hazardous certification of all police officers and firefighters.
Prior to the 2008 extraordinary session, the first sentence of KRS 61.592(2)(a) began: "Each employer may request of the board hazardous duty coverage for those positions as defined in subsection (1) of this section, but a county, narrowly defined as one (1) of Kentucky's one hundred and twenty (120) counties, the provisions of KRS 78.510(3) notwithstanding, shall request hazardous duty coverage for its full-time paid firefighters. " (Emphasis added.) As the Kentucky Retirement Systems have pointed out, this mandatory "shall" clause relating to counties was deleted by HB 1, leaving only the permissive language that already existed prior to the 2008 amendment. It cannot, however, be supposed from the mere retention of this permissive language that the 2008 General Assembly intended to enable a county government to cease its participation in hazardous duty coverage entirely by simply failing to request any hazardous certifications for future employees. Such a course of action, at least in regard to police officers and firefighters, would be forestalled by other law as noted below.
Although permissive language is used in KRS 61.592(2)(a), and the clause in that subsection requiring all counties to request hazardous duty coverage for their full-time paid firefighters was deleted by HB 1, counties are not thereby relieved of any obligations they may have under other existing law to ensure that their firefighting positions are certified as hazardous duty. An example would be KRS 78.530(7)(a), which closes certain existing statutory retirement systems to new members as of August 1, 1988, and provides:
New employees [granted membership in the CERS] who would [formerly] have been granted membership in retirement systems created pursuant to KRS 95.768, 3 or any other policemen or firefighters who would have been granted membership in retirement systems created pursuant to KRS 79.080, 4 ? or any such policemen or firefighter members employed on or prior to August 1, 1988, who transfer to the County Employees Retirement System, shall be certified by their employers as working in hazardous positions.
This requirement still governs the classifications of both firefighters and police officers employed by counties. Similar obligations are also imposed by other statutes upon cities' certification of police officers and firefighters placed in the CERS. See, e.g., KRS 95.852(e) (applying to cities of the second class); KRS 95.520 (cities of the third class); KRS 95.768(3)(e) (cities of the fourth class).
In light of these requirements, the absence of a comma after "emergency medical technicians" in KRS 61.592(1)(b) ("? and emergency medical technicians if ...") indicates that clauses 1 and 2 following thereafter are applicable only to emergency medical technicians, not to all the positions in the list. Otherwise, the certification of police and firefighter positions in the CERS as hazardous would be limited in a manner inconsistent with the various statutes making such certification mandatory for all such positions. Statutes in pari material must be construed together. Com. v. Kerr, 136 S.W.2d 783, 785 (Ky.App. 2004).
This reading of the "if" clause is consistent with parallel grammatical structure as well, since the clause's application to emergency medical technicians parallels the use of a restrictive phrase for correctional officers immediately beforehand ("correctional officers with duties that routinely and regularly require face-to-face contact with inmates" ). Furthermore, "[i]t is a general rule of statutory construction as well as grammatical construction that a modifying clause is confined to the last antecedent, unless there is something in the subject matter or dominant purpose which requires a different interpretation." OAG 77-152 (quoting Winokur v. Michigan State Board of Dentistry, 114 N.W.2d 233, 235 (Mich. 1962)); accord, King Drugs, Inc. v. Com., 250 S.W.3d 643, 646 (Ky. 2008); Popplewell's Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d 456, 464 n.33 (Ky. 2004); Smith v. Com., 41 S.W.3d 458, 459-60 (Ky.App. 2001). Since the last antecedent in KRS 61.592(1)(b) is "emergency medical technicians, " clauses 1 and 2 should be construed as applying only to them.
Conclusion
It is the opinion of this Office that the proposed amended regulation of the Kentucky Retirement Systems is consistent with the law, with the caveat that local government employers may be obligated by statutes outside KRS Chapter 61 to certify certain positions as hazardous. Form 7026, however, should be revised so that the last two questions relate to emergency medical technicians only.
Footnotes
Footnotes
1 KRS 61.315(1) defines "police officer" as "every paid police officer, sheriff, or deputy sheriff, corrections employee with the power of a peace officer pursuant to KRS 196.037, any auxiliary police officer appointed pursuant to KRS 95.445, or any citation or safety officer appointed pursuant to KRS 83A.087 and 83A.088, elected to office, or employed by any county, airport board created pursuant to KRS Chapter 183, city, or by the state." The same subsection defines "firefighter" as "every paid firefighter or volunteer firefighter who is employed by or volunteers his or her services to the state, airport board created pursuant to KRS Chapter 183, any county, city, fire district, or any other organized fire department recognized, pursuant to KRS 95A.262, as a fire department operated and maintained on a nonprofit basis in the interest of the health and safety of the inhabitants of the Commonwealth and [including] qualified civilian firefighters employed at Kentucky-based military installations."
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2 We interpret "remain in a position" as including a situation where a pre-September-1 employee transfers from one position to another if both were hazardous-covered prior to that date, since the statutory scheme attaches the pre-amendment definition of " hazardous position" to the employee rather than to the position.
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3 KRS 95.768 is a statute governing the police and firefighter's pension fund for cities of the fourth class.
4 KRS 79.080 is a statute governing retirement benefits for employees of counties, cities of all classes, and urban-county governments.
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