Faust v. Com., No. 2002-SC-0545-DG.

Decision Date26 August 2004
Docket NumberNo. 2002-SC-0545-DG.
Citation142 S.W.3d 89
PartiesW. Gayle FAUST, Appellant, v. COMMONWEALTH of Kentucky, Tourism Development Cabinet, Department of Parks, et al., Appellees.
CourtUnited States State Supreme Court — District of Kentucky

Appeal from the Circuit Court, Franklin County, Roger L. Crittenden, J Donald Duff, Frankfort, Counsel for Appellant.

Sarah O. Hall, Assistant General Counsel Tourism Cabinet, Mark A. Sipek, Personnel Board, Frankfort, Counsel for Appellees.

Opinion of the Court by Justice GRAVES.

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 re-employment 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.

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