Request By:
Lieutenant Governor Jenean M. Hampton
Opinion
Opinion By: ANDY BESHEAR,ATTORNEY GENERAL;Taylor Payne,Assistant Attorney General
Opinion of the Attorney General
Lieutenant Governor Jenean M. Hampton has requested an opinion of this Office to address "whether the Lieutenant Governor has "the appointing authority to hire and fire his/her own staff[.]" The Lieutenant Governor informs this Office that in 2015 she hired a chief of staff and a deputy chief of staff. In 2019, Governor Matt Bevin terminated each of their employments in her office. The Lieutenant Governor has attempted to rehire her chief of staff, but the Personnel Cabinet has refused to process her appointment. 1
We advise that the Lieutenant Governor is the appointing authority of the office of the Lieutenant Governor and, as such, has the power to appoint and terminate employees of the office of the Lieutenant Governor in accordance with the provisions of KRS Chapter 18A.
The Lieutenant Governor is a constitutional officer elected for a term of four years. KY. CONST. § 70. The Lieutenant Governor's duties are prescribed by law and may include duties delegated by the Governor. KY. CONST. § 72. The General Assembly has designated the office of Lieutenant Governor as a Department headed by an elected officer within the Cabinet for General Government. KRS 12.020(f)(2). However, KRS 12.020 expressly provides that, "except in the case of the Personnel Board and where the attached department or administrative body is headed by a constitutionally elected officer, the attachment shall be solely for the purpose of dissemination of information and coordination of activities and shall not include any authority over the functions, personnel, funds, equipment, facilities, or records of the department or administrative body." Thus, as a constitutionally elected officer, the Lieutenant Governor retains "authority over the functions, personnel, funds, equipment, facilities, or records" of her office.
KRS Chapter 18A confirms and further defines this authority of the Lieutenant Governor. Importantly, it defines the "appointing authority" as "the agency head or any person whom he has authorized by law to designate to act on behalf of the agency with respect to employee appointments, position establishments, payroll documents, register requests, waiver requests, requests for certification, or other position actions." KRS 18A.005(1). Therefore, in accordance with the General Assembly's designation of the office of Lieutenant Governor as a Department headed by the Lieutenant Governor, KRS Chapter 18A recognizes the Lieutenant Governor as the "appointing authority" for the office of Lieutenant Governor. KRS 12.020 instructs that the Lieutenant Governor retains her authority over the personnel of the office of the Lieutenant Governor, including her appointment authority.
Additionally, KRS 18A.115(1)(d) explicitly recognizes the existence of officers and employees on the staff of the Lieutenant Governor. In doing so, it exempts those officers and employees from the classified service governed by KRS 18A.005 to 18A.200. Notably, 101 KAR 3:050, Section 1(3) states that employees appointed to positions exempted from the classified service "serve at the will of the appointing authority[.]"
In sum, the Lieutenant Governor possesses all of the powers and responsibilities of an "appointing authority" under KRS Chapter 18A with respect to her staff. This includes the appointment of officers and employees to her staff in positions exempt from classified service. Because those officers and employees are exempt from the classified service, they serve at the will of the Lieutenant Governor. The Personnel Cabinet cannot obstruct the Lieutenant Governor from exercising this authority. 2Thus, the Lieutenant Governor has the authority to appoint officers and employees to her staff and to terminate the employment of those officers and employers on her staff.
Footnotes
Footnotes
1 The Lieutenant Governor has also informed us that both her chief of staff and her deputy chief of staff have appealed the Governor's termination of then employment to the Personnel Board. Given this pending litigation, we decline to opine on the specific terminations at issue.
2 However, like the other constitutional officers, the Lieutenant Governor is not precluded "from filling unclassified positions in the manner in which positions in the classified service are filled except as otherwise provided in KRS 18A.005 to 18A.200." KRS 18A.115(5).