Kentucky Advisory Opinions December 21, 2001: OAG 01-008 (December 21, 2001)

OAG 01-008.

Opinion of the Attorney General

The American Federation of Teachers asks the opinion of the Attorney General on the following question:

Inasmuch as the General Assembly has directed elected employee representation on the Board for KCTCS, does the Board of Regents of KCTCS have the authority to prohibit an elected faculty or staff member's right to vote, during KCTCS Board meetings, on general employee salary and benefit issues?

ANALYSIS

The boards of regents of Kentucky's postsecondary educational institutions are creatures of statute, and therefore have only the power granted to them by the General Assembly. In KRS 164.365, the General Assembly granted the boards of regents of Kentucky's postsecondary educational institutions comprehensive authority over personnel and management issues at each respective institution. That statute provides in relevant part:

(1) Anything in any statute of the Commonwealth to the contrary notwithstanding, the power over and control of appointments, qualifications, salaries, and compensation payable out of the State Treasury or otherwise, promotions, and official relations of all employees of Eastern Kentucky University, Western Kentucky University, Murray State University, Northern Kentucky University, and Morehead State University, as provided in KRS 164.350 and 164.360, and of Kentucky State University and the Kentucky Community and Technical College System, shall be under the exclusive jurisdiction of the respective governing boards of each of the institutions named.

Id. In short, the statute grants each board of regents full authority over the hiring and compensation of its faculty and staff employees.

Similarly, the boards' authority to limit or alter the voting rights of one of its members also is defined by statute. In KRS 164.289, the General Assembly specifically defined the voting power of the "faculty member" of the boards of regents. That statute provides the following:

Notwithstanding any other provision of KRS Chapter 164, the faculty member of any governing board of any postsecondary educational institution supported in whole or in part by state funds, whether or not described as nonvoting, shall have the right to vote on all matters except that of faculty compensation.

Id. According to this statute, the faculty member's right to vote on all matters except faculty compensation is preserved by statute, and therefore the boards of regents are prohibited from limiting the faculty member's right to vote on these issues when they are considered and acted upon by the board.

However, the same statute prohibits the faculty member from voting on "faculty compensation." Although the term "faculty compensation" is not defined in KRS 164.289, the faculty board member of each institution is required by statute to abstain on that issue, and the boards of regents are authorized to adopt certain rules and practices implementing that statutory provision.

With the exception of the Kentucky Community and Technical College System, the boards of regents of the postsecondary educational institutions have interpreted the term "faculty compensation" narrowly since the time that statute was adopted. OAG 78-40; OAG 77-693; OAG 72-267. In general, these boards prohibit the faculty and staff regents from voting on individual compensation issues but not questions of group compensation. For example, under the current interpretation, the faculty board member cannot vote to hire an identified candidate at a specific salary, but the same board member may vote for a 5% increase in faculty salaries across the board. This interpretation is consistent with language KRS 164.289 because the term "faculty compensation" is not specifically defined by the statute. Kentucky Unemployment Insurance Company v. Jones, Ky. App., 809 S.W. 2d 715 (1991) (when there is no specific statutory definition, words of the statute should be construed according to their common and approved usage in a manner that comports with the purpose of the statute).

This narrow interpretation of the term "faculty compensation" also appears to be consistent with policy and purpose of KRS 164.289. Wathen v. General Electric Company, 115 F.3d 400 (6th Cir. 1997) (in expounding a statute, the court must not be guided by a single sentence, but must look to the provisions of the whole law and to its object and policy); Kentucky Industrial Utility Customers, Inc. v. Kentucky Utilities Company, Ky., 983 S.W.2d 493 (1998) (fundamental rule of statutory interpretation is to give effect to legislative intent.). As a matter of professional ethics and public policy, faculty and staff board members should not be permitted to use their position and power as a governing member of a public educational institution to increase their own salary or compensation. Similarly, a danger exists that the same board member could use that power to improve or even penalize another's salary or position within the institution based on personal interest. In other words, the General Assembly adopted this provision as a special protection against conflicts of interest that arise as a result of the faculty member's special position as both a regent and employee of the institution.

On the other hand, the faculty and staff positions on the governing boards were created to represent those constituencies on the governing boards of Kentucky's educational institutions. Thus, although the faculty and staff regents should not be permitted to act in their own personal interests by voting on individual salaries, they should be permitted to represent the interests of the faculty and staff at large in major decisions regarding compensation of these groups as a whole.

When the General Assembly has explicitly left a gap for an agency to fill, or when there has been an express delegation of authority to the agency to elucidate a specific statutory provision by rule or regulation, any ensuing regulation is binding unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute. Even in the absence of an express delegation of authority on a particular question, agencies charged with applying a statute necessarily make all sorts of interpretive choices, and while not all of those choices bind judges to follow them, they may influence courts facing questions the agencies have already answered. The weight accorded to an administrative judgment "will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control."

Furthermore, the interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference under the doctrine of operative construction. Deference to an agency's interpretation is particularly appropriate when the agency is one of special competence and experience, and the agency's interpretation is longstanding. Such interpretation may, in fact, be entitled to a controlling significance in judicial proceedings. If there is a rational basis for the agency's interpretation, it should generally be upheld on judicial review.

The purpose of an opinion of the Attorney General is to predict the decision of a court of law. The narrow interpretation of the term "faculty compensation" by Kentucky's boards of regents technically is not binding on the Board of Regents of the Kentucky Community and Technical College System. However, that particular interpretation is: (1) a long standing interpretation by Kentucky's postsecondary educational institutions, (2) adopted by agencies of expertise charged with enforcing KRS 164.289, and (3) most consistent with the purpose of that statute. On this basis, a court of law is more likely to adopt the narrow interpretation of the term "faculty compensation" that was adopted by Kentucky's postsecondary institutions.

CONCLUSION

The Board of Regents of the Kentucky Community and Technical College System should adopt a narrow interpretation of the term "faculty compensation" in KRS 164.289. Under that interpretation, the faculty and staff members of the KCTCS Board of Regents should be permitted to vote on the compensation of groups of faculty and staff as a whole, but not questions of individual compensation for themselves or other employees of the postsecondary institutions.

Albert B. Chandler III

Attorney General

Jennifer L. Carrico

Assistant Attorney General