GAYLE FAUST V. COMMONWEALTH OF KENTUCKY, TOURISM DEVELOPMENT CABINET, DEPARTMENT OF PARKS, ET AL .
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RENDERED : AUGUST 26, 2004
TO BE PUBLISHED
,Sttprtmr Court of
2002-SC-0545-DG
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W. GAYLE FAUST
V.
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APPELLANT
REVIEW FROM THE COURT OF APPEALS
2001-CA-0241-MR
FRANKLIN CIRCUIT COURT NO . 98-CI-1352
COMMONWEALTH OF KENTUCKY,
TOURISM DEVELOPMENT CABINET,
DEPARTMENT OF PARKS, ET AL.
APPELLEES
OPINION OF THE COURT BY JUSTICE GRAVES
AFFIRMING
On September 19, 1997, Appellant, W. Gayle Faust, was terminated, without
cause, from his "political" (or unclassified) appointment to a non-merit service position
within the Kentucky Department of Parks . As a career employee, promoted from the
classified to the unclassified service, Faust nonetheless retained statutorily-granted
reversion rights for employment within the classified service of state government. Since
his termination, however, Faust and the Department have differed in their interpretations
of these rights . In reviewing this matter, the Personnel Board, the Franklin Circuit Court
and the Court of Appeals have each reached varying conclusions, with the Court of
Appeals denying Faust reinstatement to the classified service . We accepted
discretionary review to determine the scope of reversion rights belonging to Faust . After
hearing oral argument and reviewing the record, we affirm the Court of Appeals .
BACKGROUND
In 1996, Faust left the relative security of employment in the state classified
service by accepting a promotion to the non-merit system position of Division Director II,
within the Department of Parks Division of Personnel . Appointees to the unclassified
service are largely excluded from the employment protections afforded by KRS Chapter
18A, and may be terminated without cause. See Martin v . Corrections Cabinet , Ky., 822
S .W.2d 858, 860 (1991) . Despite such risks, "career employees," defined by KRS
18A.005(4) as individuals with sixteen or more years of full-time state service, may
qualify for reversion rights upon dismissal .
Faust, a career employee by virtue of more than twenty-six years of state
employment, enjoyed reversion rights pursuant to KRS 18A.115(4) and 18A.130(2), the
first statute providing :
Career employees within the classified service promoted to positions
exempted from classified service shall, upon termination of their
employment in the exempted service, revert to a position in that class in
the agency from which they were terminated if a vacancy in that class
exists . If no such vacancy exists, they shall be considered for employment
in any vacant position for which they were qualified pursuant to KRS
18A .130 and 18A .135 .
The second reversion statute, KRS 18A.130(2), mirrors the language of KRS
18A.115(4) quoted above, but requires a career employee to attain "status," or tenure,
in a classified service position in order to qualify for reversion rights upon dismissal :
If the career employee has previously attained status in a position in the
classified service, he shall revert to a position in that class in the agency
from which he was terminated if a vacancy in that class exists. If no such
vacancy exists, he shall be considered for employment in any vacant
position for which he is qualified pursuant to the reemployment
procedures .
Since his termination as Division Director II, the Department of Parks and Faust
have remained sharply divided over the operation of these statutes . Based upon the
Personnel Cabinet's interpretation of KRS 18A.115(4), the Commissioner of Parks
determined that Faust possessed reversion rights to a position of Assistant Director, the
last position Faust held in the classified service. However, because there were no
vacant Assistant Director positions within the Department at the time of his dismissal,
the Commissioner instructed Faust that his name would instead be placed on the state
re-employment register, initially under the Assistant Director classification, and
thereafter for any position for which Faust tested and qualified .
At the invitation of the Commissioner, Faust identified two vacant Staff Assistant
positions to which he asserted reversion rights . Faust claimed these positions were
comparable in both responsibility and pay with his former classified service position of
Assistant Director . Faust also informed the Commissioner that he had successfully
tested and qualified for these positions following his termination from the unclassified
service .
After consultation with the Personnel Cabinet, the Commissioner disputed
Faust's claim of reversion rights to the Staff Assistant positions. Consequently, the
Commissioner informed Faust that in lieu of reversion, Faust was instead "under full
consideration for any vacant position" for which he qualified .
Faust appealed to the Personnel Board, alleging an "improper denial of career
employee reversion rights ." The Board's hearing officer framed the issue presented
narrowly : "Was the Appellant [Faust] denied a right to be reverted to a position as Staff
Assistant?" Following an extensive evidentiary hearing, the hearing officer summarized
the Personnel Cabinet's interpretation of the statutes pertaining to reversion :
a. A career employee possesses reversion rights to the last classification
the employee held in the classified service before going to the
unclassified service . This interpretation is based on the use of the
singular term "that class" in KRS 18A .115(4), 18A.130(2) and
18A .135(1) ;
b . If no vacancy exists in the agency in the class to which the employee
may revert, then the employee possesses re-employment rights to the
reversion class and any other class for which the employee is qualified
and may be placed on re-employment registers for those additional
classes upon written notification .
The hearing officer concluded that "the contemporaneous construction of these
statutes by the Personnel Cabinet is not inconsistent with the language of the statutory
provisions in KRS 18A.115(1)[sic] and 18A.130(2) and is entitled to significant weight."
Accordingly, since there were no vacancies in Faust's last classified position of
Assistant Director, and because Faust never held status in the position of Staff
Assistant, the hearing officer recommended that Faust's appeal for reversion to these
positions be denied. The hearing officer stressed that under these circumstances, KRS
18A.115(4) and 18A .130(2) provided Faust with the right to be considered for
employment, but not an automatic right to be employed .
Faust filed exceptions to the hearing officer's recommended order, and without
explanation the Personnel Board sustained Faust's appeal to the extent that, from the
date of the Board's order, the Department of Parks was directed to hire Faust in any
vacant position for which he qualified . The Board denied Faust's appeal to the extent
that it did not order him reverted to the position of Staff Assistant, which position the
Commissioner did not intend to fill .
Both parties petitioned the Franklin Circuit Court for review of the Personnel
Board's final order. The circuit court granted Faust's petition in its entirety, ordering,
among other things, Faust's immediate reversion to the same or similar position as he
last held in the classified service, at his reverted salary, effective the date of his
termination . The circuit court reasoned that the General Assembly, by adopting merit
principles of employment for state personnel, intended for the retention of career
employees upon their separation from the unclassified service. "[T]he legislature
promised more to career employees than the mere hope that if terminated from the
unclassified service their former classified position will be vacant."
The Court of Appeals, in a 2-1 decision, reversed the lower court, observing that
despite the general intent and purpose of KRS Chapter 18A, "we are bound by what
was enacted, not what was `intended ."' The Court of Appeals stated that "the crux of
the matter" is the meaning of the phrase "considered for employment," as used in the
second sentence of KRS 18A.115(4). The Court of Appeals determined that in
situations where no vacancy exists in the reversion class, the use of the word "consider"
allows an element of discretion, and does not compel an agency to offer employment.
The majority opinion concluded by stating : "the decision of the hearing officer was
correct and should be reinstated ."
ANALYSIS
Much of the difficulty in interpreting the proper scope of Faust's reversion rights
lies in determining where his valuable reversion rights end and his somewhat lesser reemployment rights begin . Although Faust does not directly contest the proper
application of re-employment rights in this case, the distinction between reversion and
re-employment rights is crucial to understanding the ramifications of Faust's claims .
Briefly, reversion permits uninterrupted state employment, at a salary commensurate
with that last received in the classified service . In contrast, the re-employment
procedure admits the specter of unemployment, the possibility of lower wages, and no
guarantee of rehire.
Faust views KRS 18A.115(4) and 18A.130(2) as requiring his reversion to any
vacant position for which he is qualified . In a sense, Faust construes reversion rights in
a manner so expansive that the re-employment question is never reached . The
Department of Parks, on the other hand, regards reversion as a much more limited
right, a subset of the broad re-employment rights granted to career employees . For the
Department, reversion is limited to those positions in which a career employee has
previously attained status in the classified service .
In our opinion, neither view is satisfactory ; instead we agree with the Court of
Appeals that the "hearing officer was correct," and we borrow heavily from the
meticulous findings and conclusions supporting the original recommended order in this
matter.
I.
Faust claims that despite his promotion to the unclassified service, he possesses
a constitutionally-protected property interest in continued state employment . Faust
bases this assertion on two elements : 1) his retained "status" in the classified service
following promotion to an exempt position, and 2) what Faust interprets as the intent of
the legislature "to assure the career employees of continued employment in the
classified service in the event they were dismissed from their unclassified positions,
without cause (and without right of appeal) ."
Faust points out that a state employee may only be deprived of a right to
continued employment through procedures that comport with due process . Cleveland
Board of Education v . Loudermill , 470 U .S. 532, 105 S.Ct. 1487, 84 L.Ed .2d 494 (1985) ;
Mathews v. Eldridge , 424 U.S . 319, 96 S.Ct . 893, 47 L .Ed .2d 819 (1976) . However, the
essential question here is not whether the administrative hearings and subsequent
judicial review afforded Faust due process, but whether Faust has an expectation of
continued employment following his termination from the unclassified service.
Typically, only classified employees are recognized as having such protected
property rights . A classified merit employee "is endowed with certain rights and
protections, among those being the right of continued employment unless `just cause'
for dismissal is demonstrated by the agency by whom he is employed ." Transportation
Cabinet v. Woodall , Ky. App., 735 S.W .2d 335, 337 (1987) . See also Koo v.
Commonwealth, Dep't for Adult and Technical Education , Ky . App., 919 S .W.2d 531,
534 (1995) .
For Faust, a guarantee of continued state employment can only be determined
by examining the particular statutes and ordinances in question . Bishop v. Wood , 426
U .S . 341, 345, 96 S.Ct . 2074, 2077, 48 L.Ed .2d 684 (1976) ; Weiand v . Board of
Trustees of Kentucky Retirement Systems , Ky ., 25 S.W.3d 88, 93 (2000). "To have a
property interest in a benefit, a person clearly must have more than an abstract need or
desire for it . He must have more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it." Board of Regents v. Roth , 408 U .S . 564,
577, 92 S.Ct . 2701, 2709, 33 L .Ed.2d 548 (1972) .
As a matter of statutory construction, we are guided by both the intent of the
legislature and plain language of the provisions involved . These interpretive
frameworks are not mutually exclusive, for although KRS 446.080(1) provides that "[a]II
statutes of this state shall be liberally construed to promote their objects and carry out
the intent of the legislature," this Court must ascertain that intent from the words used,
"rather than surmising what may have been intended but was not expressed ." Flying J
Travel Plaza v . Commonwealth , Ky ., 928 S .W .2d 344, 347 (1996) .
Undoubtedly, the legislature has provided career employees with specific rights
of reversion and re-employment upon termination, without cause, from their unclassified
service positions . However, "[i]t is neither the duty nor the prerogative of the judiciary to
breathe into the statute that which the Legislature has not put there . The humane spirit
of the statute does not warrant its extension beyond its legitimate scope." Gateway
Construction v . Wallbaum , Ky., 356 S .W.2d 247, 248-49 (1962) (citations omitted) .
KRS 18A.0751(4)(j) directs the Personnel Board to promulgate regulations "[f]or
the promotion of career employees to positions in the unclassified service without loss
of status to the individual employees so promoted, as provided by this chapter ." In
response, the Personnel Board adopted 101 KAR 3:050, Section 1(2), which provided in
part that "[a]ny career employee promoted from a classified service position retains his
status in the classified service ."
Simply because career employees retain their "status" following their promotions
from the classified service does not lead inexorably to the conclusion that they have
sweeping rights to continued employment, distinct from those provided for by the
reversion or re-employment statutes . As part of the overall statutory scheme, the
retention of "status" allows career employees to avoid once again serving an initial
probationary period following their reversion or re-employment in the classified service .
See KRS 18A.111 .
Although we are not unsympathetic to the plight of Faust, terminated less than
two months before he reached his twenty-seventh year of state service, we must limit
his reversion rights to those delineated by statute, rather than those we may wish he
had received, but were not provided for by the legislature . Therefore, viewing the
applicable reversion statutes and regulations as a whole, we do not perceive a grant of
continued employment, but rather an interrelated set of statutes that define the
reversion and re-employment rights accorded to career employees .
Il.
A.
The first sentence of KRS 18A.115(4) directs that career employees "shall, upon
termination of their employment in the exempted service, revert to a position in that
class in the agency from which they were terminated if a vacancy in that class exists."
(emphasis added) . Faust argues that the use of the phrase "that class" in KRS
18A .115(4), as well as in 18A .130(2), allows reversion to any class, not just the last
class, for which an employee may have previously gained status. As such, Faust
contends that the Court of Appeals erred by determining that career employee reversion
rights are limited to the last class of position in which the employee held status before
leaving the classified service .
Actually, the Court of Appeals never directly addressed this issue . Instead, the
court adopted an interpretation of reversion that would require an agency to determine
whether a vacancy exists in "a position" that the career employee "previously held
status" within the classified service . Such an interpretation could conceivably permit
reversion to any class the career employee had previously attained status in, not just
the last class .
In contrast, the hearing officer reached a more limited interpretation in his
conclusions of law, a conclusion that was subsequently adopted by the Personnel
Board :
The Personnel Cabinet has consistently over a number of years
interpreted the language in KRS 18A.115(4) and 18A.130(2) referring to
"that class" as referring to the last class in the classified service in which a
career employee held status before moving to the unclassified service in
determining to what class a career employee has a right to revert.
(emphasis in original) .
Among the numerous witnesses who testified before the hearing officer, Daniel
Egbers, General Counsel and Chief Legal Officer for the Personnel Cabinet, stated that
equating the singular "that class" with "last class" prevents agencies from "lowballing"
employees, by barring reversion to lower, earlier classifications than the employees' last
classification in the classified service. Other witnesses, including Thomas Greenwell,
the former Commissioner of Personnel from 1983 to 1991, confirmed the general
practice of interpreting "that class" in a manner synonymous with "last class," but also
indicated that if no vacancy existed in a career employee's last class, an agency must
then attempt to place the employee in any class for which he qualified .
We note that the Personnel Cabinet's long-held interpretation of the reversion
statutes, equating "that class" to "last class," is entitled to significant weight. Hagan v .
Farris, Ky., 807 S.W.2d 488 (1991) ; Barnes v . Dep't of Revenue , Ky. App., 575 S .W .2d
169 (1978) . Furthermore, despite what Faust describes as conflicting testimony, the
hearing officer's findings are supported by substantial evidence in the record, and are
therefore conclusive . Urella v. Kentucky Board of Medical Licensure , Ky., 939 SW .2d
869, 873 (1997) ; Kentucky Commission on Human Rights v. Fraser , Ky., 625 S .W.2d
852, 856 (1981) .
Finally, although this Court reviews questions of law de novo, Kosmos Cement
Company, Inc. v. Haney, Ky., 698 S.W.2d 819 (1985) ; Kentucky State Racing
Commission v . Fuller, Ky., 481 S .W.2d 298 (1972), we agree with the hearing officer's
10
observation that the contemporaneous construction of these statutes by the Personnel
Cabinet is "not inconsistent" with the language of KRS 18A.115(4) and 18A .130(2). We
note that the reversion class, limited here to the "last class" in which a career employee
held status in the classified service, may nonetheless encompass more than one
position . Unfortunately for Faust, no vacancies existed in any positions in his reversion
class, Assistant Director, at the time of his dismissal from the exempted service .
B.
During the 2000 session of the Kentucky General Assembly, well after Faust's
termination from the unclassified service, the legislature for the first time defined
"reversion" by amending KRS 18A .005 (2000 Ky . Acts ch . 91 ยง 1).
KRS 18A.005(32)
now makes clear that "reversion means either the returning of the status employee to
his or her last position held in the classified service, if vacant, or the return of a status
employee to a vacant position in the same or similar job classification as his or her last
position held in the classified service ." According to Faust, by defining reversion, the
legislature has "given expression of its intent regarding the previously enacted career
employee reversion statutes ."
Faust overlooks KRS 446 .080(3), which provides in no uncertain terms that "[n]o
statute shall be construed to be retroactive, unless expressly so declared ." In
Commonwealth Dept . of Agriculture v. Vinson , Ky ., 30 S.W.3d 162 (2000), we further
opined:
[t]here is a strong presumption that statutes operate prospectively and that
retroactive application of statutes will be approved only if it is absolutely certain
the legislature intended such a result . This is particularly true when the legislation
is substantive and not remedial, and new rights and new duties are created .
Id . at 168. But see C & H Entertainment, Inc. v. Jefferson County Fiscal Court , 169 F .3d
1023, 1027 (6th Cir .1999) (wherein the Sixth Circuit Court of Appeals drew "considerable
11
guidance as to legislative intent" in the first instance from a subsequent act of the
Kentucky legislature).
Although we do not turn a blind eye to the 2000 amendment through slavish
adherence to precedent, see generally Brown v . United States , 256 U .S . 335, 343, 41
S .Ct. 501, 502, 65 L .Ed . 961 (1921) (Holmes, J .) (discussing ossification of the law) ;
Scalia, Antonin,"Assorted Canards of Contemporary Legal Analysis" 40 Case W. Res .
L . Rev. 581 (198911990), the issue of whether or not the newly-enacted definition of
reversion merely clarifies the Personnel Cabinet's long held interpretation of "last class,"
or instead broadens the reversion class available to career employees, is a matter of
some conjecture and not properly before this Court .
Ill .
If no vacancy exists in the reversion class, as defined in section II . A., supra, then
the second sentences of both KRS 18A.115(4) and 18A .130(2) mandate that a
dismissed employee "shall be considered for employment" pursuant to the reemployment procedures . Faust argues that the use of the word "shall" before the
phrase "considered for employment" in each reversion statute indicates the legislature's
intent to remove any element of discretion from the re-employment process . Faust
further submits that the use of the word "shall," in this context, requires agencies to offer
employment in any position for which the terminated career employee qualifies .
Of course, "[s]hall' means shall," Bowen v. Commonwealth, ex rel . Stidham, Ky.,
887 S .W.2d 350, 352 (1994), and KRS 446 .010(29) states that "shall" is "mandatory,"
unless the context requires otherwise . However, we believe the context here allows a
less rigid interpretation than Faust promotes . "[W]here other words are used in
connection with "shall," "must," "may," or "might," which clearly indicate mandatory or
12
directory construction, as the case may be, we have never ignored the force of the
descriptive or qualifying language ." Stringer v . Realty Unlimited, Inc . , Ky., 97 S .W.3d
446, 448 (2003), quoting Clark v. Riehl, 313 Ky. 142, 144, 230 S.W.2d 626, 627 (1950) .
As articulated by the Court of Appeals, Black's Law Dictionary (6th ed . 1990)
defines the verb "consider" as following: "To fix the mind on, with a view to careful
examination ; to examine ; to inspect. To deliberate about or ponder over . To entertain
or give heed to ." The Court of Appeals observed, and we agree, that nothing in this
definition indicates one is compelled or mandated to decide an issue one way or
another . Even when modified by the word "shall," the phrase "shall be considered"
retains its discretionary character . Cf. Koo v. Commonwealth , supra, 919 S-W.2d at
534 .
This limited grant of discretion to appointing authorities engaged in the hiring
process corresponds squarely with the procedures governing the re-employment of
career employees . Under re-employment, no vacancy may be filled from a competitive
register "until all career employees on the re-employment list for that class of position
have denied employment in that class." KRS 18A.135(3) . Nonetheless, an appointing
authority may refuse to re-employ a qualified employee "for cause." Id .
On the whole, "considered for employment" simply reflects the discretionary
character of the re-employment rights granted to career employees . Faust, then, had
the right to be considered for re-employment as a Staff Assistant, a position for which
he tested and qualified, but no automatic right of reversion to this or any other position
except those in his last class in the classified service .
IV.
The final order of the Personnel Board was unusual in that after making only
minor technical corrections, the Board approved, adopted and incorporated by
reference the hearing officer's complete findings of fact and conclusions of law, the
same findings and conclusions that had theretofore supported a contradictory
recommendation . The hearing officer, of course, recommended that Faust's appeal be
denied, whereas the Personnel Board ordered the Department to hire Faust in any
vacant position that was to be filled and for which Faust qualified . No separate findings
of fact or conclusions of law accompanied the Personnel Board's order, as required by
KRS 13B.120(3).
The only indication of the Personnel Board's possible reasoning for deleting the
hearing officer's recommended order comes from a reference to a layoff statute, KRS
18A.113(5), and to an administrative regulation, 101 KAR 3 :050, both references
contained within the text of the Board's order. We now learn from arguments before this
Court that the Board felt constrained to give effect to Section 1(2) of 101 KAR 3:050, a
regulation which attempted to implement the reversion procedures through application
of the layoff statutes, despite the fact that neither KRS 18A.115(4) nor 18A.130(2)
mentions layoffs .
As a general rule, such post-hoc rationalizations are inappropriate, particularly as
here, when virtually no basis in the record supports the Personnel Board's order. See
Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Auto . Ins. Co ., 463 U .S. 29,
50, 103
S.Ct. 2856, 2870, 77 L.Ed .2d 443 (1983) (stating "[i]t is well-established that an
agency's action must be upheld, if at all, on the basis articulated by the agency itself") .
Notwithstanding this oversight by the Personnel Board, the applicability of 101 KAR
3:050 is of central importance on this appeal .
At the time of Faust's dismissal, 101 KAR 3 :050, Section 1(2) provided :
Any career employee promoted from a classified to an unclassified
position retains his status in the classified service. On separation from the
unclassified service, he reverts to a position in that class in which he had
status in the agency from which he was terminated if a vacancy in that
class exists. If no such vacancy exists in a position of the former class,
the statutes (KRS 18A .113 and 18A.1132) pertaining to layoff shall apply.
He shall be considered for employment in any vacant position for which he
is qualified pursuant to KRS 18A.130 and 18A .135.
(emphasis added) .
Although this regulation has since been deleted, 101 KAR 3:050, Section 1(2)
was in force at the time of Faust's dismissal, and the Personnel Board notes that
pursuant to KRS 13A.140(1), only a court may declare an administrative regulation
invalid . Furthermore, regulations which are duly promulgated and are consistent with
the enabling legislation have the force and effect of law . Centre College v. Trzop, Ky .,
127 S .W.3d 562, 566-67 (2003) ; Flying J Travel Plaza , supra , 928 S.W.2d at 347.
However, such regulations may not exceed the scope of the statutory provisions on
which they are based, and are "valid only as subordinate rules when found to be within
the framework of the policy defined by the legislation." Flying J Travel Plaza , supra . See
also Camera Center, Inc. v . Revenue Cabinet, Ky., 34 S .W.3d 39, 41 (2000) (stating
that an "agency cannot by its rules and regulations, amend, alter, enlarge or limit the
terms of legislative enactment") .
The record indicates that several years before the inception of this litigation,
concerns were raised within the Department of Personnel that 101 KAR 3 :050 was likely
void because 1) it covered the same subject ground occupied by KRS 18A .115(4),
18A.130 and 18A . 135, and 2) the regulation purported to state when the lay-off statutes
15
apply when, in reality, the layoff statutes, themselves, specify their own application and
are silent on the issue of reversion and the rights of career employees .
We agree that the references to layoff provisions in 101 KAR 3 :050 far exceeded
the statutory mandate for creating regulations implementing the reversion rights of
career employees, and were therefore "null, void and unenforceable." KRS 13A.120(4) .
The lay-off rules described in KRS 18A.113, 18A.1131 and 18A .1132 embody a
complex and comprehensive scheme for avoiding and minimizing the effects of
dismissals, other than for cause, of employees in the classified and unclassified
services . However, on the issue of career employee reversion rights, the lay-off
statutes are silent . Similarly, nothing in the career employee reversion statutes makes
reference to the hiring freezes, delays in expenditures and consolidation of offices that
are contemplated by the lay-off provisions . See KRS 18A.1132(a)-(c) .
Even if we were to give effect to the now deleted provisions of 101 KAR 3 :050,
the lay-off statutes, much like the re-employment procedures, do not require that a laidoff employee be placed in a vacancy. Instead, they need only be "considered ." Koo v.
Commonwealth , supra , 919 S .W.2d at 534 . As stated by the hearing officer, "[n]othing
in the lay-off statutes gives the Appellant a right to revert to a position of Staff
Assistant ."
CONCLUSION
Among the conclusions of law set forth by the hearing officer, we discern a threestep process for analyzing a career employee's reversion rights following dismissal from
a non-merit system position :
1) Upon termination of a career employee from the unclassified service,
the appointing authority shall determine whether a vacancy exists in a
position in the last class that the career employee has previously
attained status within the classified service ;
16
2) If a vacancy exists in the last class, the agency shall revert the
employee to a position in that class; but
3) If a vacancy does not exist, the appointing authority need only consider
the terminated employee for re-employment, as specified by KRS
18A.130 and 18A .135.
We believe this process adheres to the legislative scheme of providing career
employees with job security through a limited right of reversion coupled with broad reemployment opportunities.
The judgment of the Court of Appeals is hereby affirmed, and this matter is
remanded to the Franklin Circuit Court for proceedings consistent with this opinion .
Lambert, C .J ., Cooper, Graves, Johnstone, Keller, and Wintersheimer, J .J .,
concur.
Stumbo, J ., dissents in a separate opinion .
COUNSEL FOR APPELLANT
Donald Duff
212 Washington Street
P .O . Box 1160
Frankfort, KY 40601
COUNSEL FOR APPELLEES
Sarah O. Hall
Assistant General Counsel Tourism Cabinet
500 Mero Street
Capital Plaza tower, Room 1211
Frankfort, KY 40601
Mark A. Sipek
Personnel Board
28 Fountain Place
Frankfort, KY 40601
RENDERED : AUGUST 26, 2004
TO BE PUBLISHED
,*uprme (fourf of ~Rmfurkg
2002-SC-0545-DG
APPELLANT
W. GAYLE FAUST
V
REVIEW FROM THE COURT OF APPEALS
2001-CA-0241-MR
FRANKLIN CIRCUIT COURT NO . 98-CI-1352
COMMONWEALTH OF KENTUCKY,
TOURISM DEVELOPMENT CABINET,
DEPARTMENT OF PARKS, ET AL.
APPELLEES
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent from the majority's holding that, by the meaning of
"considered for employment" as used in KRS 18A.115(4) and 101 KAR 3 :050, Section
1(2), the Legislature intended that the agency was not compelled to re-employ Faust.
The majority was persuaded that Faust had reversion rights only to a position in the last
class to which he previously held status in the classified service; and since there was no
vacancy in that position, Faust's only right was to be placed upon the re-employment list
and "be considered" for employment in any vacant position for which he is qualified .
KRS 18A.115(4) and 18A.130(2) both require that terminated unclassified career
employees "shall" be considered for employment in any vacant position for which they
are qualified . The word "shall" is mandatory, and by using it instead of "may," the
Legislature removed the element of discretion from the consideration process.
However, the majority here holds that because "shall" is used in connection with
"be considered," it retains its discretionary character since "consider" is a discretionary
term. They agree that although Faust had the right to be considered for re-employment
as a "Staff Assistant," a position for which he was qualified, he had no automatic right of
reversion to this or any other position except those in his last class in the classified
service, which was "Assistant Director." The majority focuses on the "considered for
employment" language, and negates the word "shall" that immediately precedes it.
It seems to defeat the purpose of the job protection granted by the statutes to
negate "shall ." As the trial court stated, the purpose of the State Personnel Law was to
establish a system of personnel administration based on merit principles governing,
among other things, promotion and welfare of its classified employees .
KRS 18A.010. The General Assembly made a provision to protect the job-security
rights of career employees by the enactment of the career employee reversion rights
statutes and through the approval of regulations promulgated to implement those
statutes . Also, the intent of the Legislature was to assure the career employees of
continued employment in the classified service in the event that they were dismissed
from their unclassified positions without cause. Furthermore, the positive side for the
career employees leaving the safety of the classified service was the guarantee of the
retention of status and job placement if the non-merit position was lost . Therefore, it is
clear from the regulations that the Legislature intended the career employees to have
job protection, and the word "shall" in "shall be considered for employment" is
confirmation .
Clearly, here, the Department gave no consideration to the placement of Faust in
either of the vacant "Staff Assistant" positions, although the position of "Staff Assistant"
was the functional equivalent of, or replacement classification of, his previous position
as "Personnel Administrator ." Consideration is to be applied according to the reemployment procedures directed by KRS 18A.130, which says that a terminated career
employee "shall, upon his written request, be re-employed." Faust complied with this
procedure by requesting the "Staff Assistant" position . KRS 18A.135 mandates
placement of a career employee in a classified position and an appointing authority may
refuse to re-employ "only for cause ." Further, the Legislature intended for career
employees to be offered and placed in positions for which they are qualified rather than
have them lose their property interest in continued employment on the whim of an
appointing authority. Therefore, being "considered" would require the agency to "offer"
Faust a vacant position, which would be "Staff Assistant ."
Moreover, the statutes make it clear that Faust has rights greater than merely
employment rights . First, as a career employee promoted from a classified position to
an unclassified position, he retains his status, or tenure, in the classified service.
KRS 18A.0751(4)(j) ; 101 KAR 3 :050 Section 1(2) . Second, because he lost his
unclassified position, he had the right to revert to any vacant position in the class for
which he had status . KRS 18A.115(4) ; 101 KAR 3:050 Section 1(2). Third, if no
vacancy existed, he had the right to a position pursuant to the layoff statutes. KRS
18A.113 ; KRS 18A .1132 . Finally, Faust is entitled to be placed in any vacant position
for which he is qualified . KRS 18A.130 ; KRS 18A.135.
When an employee has a property right in continued employment, the employer
cannot deprive the employee of that right without due process. Cleveland Bd . of Educ .
v . Loudermill, 470 U .S . 532, 105 S. Ct . 1487, 84 L.Ed .2d 494 (1985); Williams v.
Commonwealth of Kv. , 24 F.3d 1526 (6 t" Cir. 1994) . Here, by failing to follow the
established procedures regarding reversion, the Department deprived Faust of his
property right to continue his employment in state government, without due process .
Therefore, I would reverse the Court of Appeals and order Faust's reinstatement to the
classified service, meaning that he be returned through reversion to the last position he
held in the classified service ("Assistant Director") if vacant, or to another vacant
position in the same or similar job classification (such as "Staff Assistant") .
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