Com., Cabinet for Human Res. v. Bridewell, No. 1999-SC-0857-DG.

• Court: United States State Supreme Court (Kentucky)
• Writing for the Court: Wintersheimer
• Citation: 62 S.W.3d 370
• Docket Number: No. 1999-SC-0857-DG.
• Decision Date: 20 December 2001
• Parties: COMMONWEALTH OF KENTUCKY CABINET FOR HUMAN RESOURCES n.k.a. Cabinet for Families and Children, Viola Miller, Secretary; and Commonwealth of Kentucky, Department of Personnel, n.k.a. Personnel Cabinet, Carol Palmore, Secretary, Appellants, v. Patricia BRIDEWELL; Jeanette Hardison; Ruth E. Barker; Alison F. Schaefer; Martha L. Lyles; Judy C. Taylor; Tiffany Thomas; Deborah L. Casey; Michael S. McKenney; Joan E. Hillen and Kentucky State Personnel Board, Appellees.

62 S.W.3d 370 COMMONWEALTH OF KENTUCKY CABINET FOR HUMAN RESOURCES n.k.a. Cabinet for Families and Children, Viola Miller, Secretary; and Commonwealth of Kentucky, Department of Personnel, n.k.a. Personnel Cabinet, Carol Palmore, Secretary, Appellants,
v.
Patricia BRIDEWELL; Jeanette Hardison; Ruth E. Barker; Alison F. Schaefer; Martha L. Lyles; Judy C. Taylor; Tiffany Thomas; Deborah L. Casey; Michael S. McKenney; Joan E. Hillen and Kentucky State Personnel Board, Appellees. No. 1999-SC-0857-DG. Supreme Court of Kentucky. December 20, 2001.

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Cynthia Kloeker, Cabinet for Human Resources, Covington, Terry L. Morrison, Cabinet for Human Resources, Office of Counsel, Daniel Egbers, General Counsel, Personnel Cabinet, Frankfort, Counsel for Appellants.

Tom Blankenship, Benton, Patricia Bridewell, Beaver Dam, Steven G. Bolton,

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Kentucky Personnel Board, Frankfort, Counsel for Appellee.

WINTERSHEIMER, Justice.

This appeal is from an opinion of the Court of Appeals which affirmed a decision of the Franklin Circuit Court which had found that certain employees of the Cabinet for Families and Children were entitled to salary increments from the State Employee Salary Equity Fund pursuant to the 1990-1992 and 1992-1994 budget bills.

The questions presented by the Cabinet are whether the Court of Appeals and the circuit court erred in interpreting the term "part-time employee" in the context of the 1990 and 1992 budget bills and violated the agreement in circuit court that this case and two unpublished Court of Appeals opinions in Cabinet for Human Resources v. Spencer (93-CA-1071-MR) and Cabinet for Human Resources v. Sanders (93-CA-2127-MR) contained similar facts and issues of law; whether the circuit court and Court of Appeals erred in determining that the Kentucky Personnel Board had jurisdiction to interpret the meaning of the budget bill and budget memorandum and whether the unpublished decisions in Spencer and Sanders, supra, correctly distinguished the difference between permanent part-time and permanent full-time employees in regard to the budget bill and budget memorandum.

The appellees frame the issues as follows: whether there was substantial evidence to support the decision of the Board to award the appellees the salary increment granted in the 1992 budget bill; whether the Personnel Board had proper jurisdiction to determine whether an employee was a part-time or full-time employee; and whether the other issues raised by the Cabinet are properly preserved for appellate review.

The employees were hired by the Cabinet for Families and Children (then known as the Cabinet for Human Resources) in the Child Support Enforcement Division on a permanent part-time basis. Most employees contend they were told by their supervisors that the classification was merely for compliance with internal regulations and they would have the same rights and benefits as full-time employees. The employees were required to work 37.5 hours per week or to use accumulated sick leave or annual leave to compensate for working less than 37.5 hours per week. The only difference between these employees and permanent full-time employees is how they are paid overtime. After the employees, all of whom earned less than $20,000 per year, were denied the Equity Fund pay increments awarded to permanent full-time employees, they appealed to the Personnel Board.

Citing KRS 48.500, the Cabinet argued that the Personnel Board lacked jurisdiction to hear the matter because it required interpretation of a branch budget bill. The hearing officer for the Personnel Board determined that the Board had jurisdiction over this matter pursuant to KRS Chapter 18A. The hearing officer concluded that the clear language of the budget bill stated that only "permanent full-time" employees were entitled to the increments and the employees were not eligible because they were classified as "permanent part-time" employees.

In the final order of the Board entered February 18, 1993, the Board agreed with the hearing officer that the refusal by the Cabinet to pay the same salary increments to all employees who were required to work 37.5 hours per week, constituted a penalization. However, the Board altered the ruling by the hearing officer and held that the employees in question were full-time de facto employees and thus would be

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entitled to the salary increase. The Franklin Circuit Court agreed with the Board's reasoning and affirmed. The Court of Appeals also affirmed the decision. This Court granted discretionary review.

The identical issue presented here was before this Court in a motion for discretionary review in Linda Spencer awl Franda Sander v. Cabinet for Human Resources (94-SC-943-D). This case was held in abeyance in Franklin Circuit Court pending a final disposition of the Spencer case. In its 1994 opinion in Spencer, the Court of Appeals reversed the circuit court judgment in favor of the employees and rejected the de facto permanent full-time classification. It held that the legislature was "fully cognizant of the legitimate and viable distinction between permanent part-time and permanent full time" and "clearly and unambiguously" directed that the salary increment be provided only to permanent full-time employees. The original discretionary review was denied. The Personnel Board, an indispensable party, had not been named in the motion.

The case presented to us at this time involves two different interpretations of the budget bills by the Court of Appeals in unpublished decisions.

I. Scope of Review/Substantial Evidence

The Franklin Circuit Court and the Court of Appeals correctly determined that there was substantial evidence to support the decision of the Personnel Board in awarding the appellees the salary increment granted in the 1992 budget bill.

It is the function of this Court to ensure that the decision of an administrative agency is supported by substantial evidence. We are not permitted to retry the case or to review the evidence de novo. Kentucky State Racing Comm'n v. Fuller, Ky., 481 S.W.2d 298 (1972). Bowling v. Natural Resources cad Environmental Protection, Cab., Ky.App., 891 S.W.2d 406 (1994), states that the test for substantial evidence is whether, when taken alone or in light...