[1994/oagheade.htm]

OAG 94-45

June 27, 1994

Hon. James M. Groves

Circuit Court Clerk

Todd County Courthouse

Elkton, Kentucky 42220

Re: Whether Sum Paid by County, to Circuit Court Clerk as Ex Officio County Law Librarian, May Be Credited to County Employees Retirement System (CERS).

Dear Mr. Groves:

By letter of April 19, 1994, you asked that this office review its previous opinion, OAG (Opinion of the Attorney General) 93-75. That opinion principally addressed whether payments by a county fiscal court to the circuit court clerk, as ex officio county law librarian (KRS 172.110(1)), could be credited in relation to a circuit court clerk's Kentucky Employees Retirement System (KERS) retirement account. The opinion indicated that such payments could not be so credited. The opinion also indicated that such sums could not be credited in relation to the County Employees Retirement System (CERS).

We have reviewed OAG 93-75, and related statutes, pursuant to your request. We believe OAG 93-75 accurately states the law governing whether sums paid to a circuit clerk as ex officio county law librarian may be lawfully credited to either the KERS or CERS. In our view, sums paid to a circuit court clerk, for the clerk's services as ex officio county law librarian, cannot be lawfully credited in relation to either system. Discussion follows.

Background

Your letter indicates, in substance and in part, that, in OAG 93-75 we responded to a question based on an incorrect assumption that the sum paid to a circuit court clerk, as ex officio county law librarian (KRS 172.110(1)), should be credited to the Kentucky Employees Retirement system (KERS). If we understand it correctly, your letter suggests that the correct question is whether such sum should be credited to the County Employees Retirement System (CERS). Your letter does not challenge the finding, in OAG 93-75, that salary paid to a circuit court clerk as county law librarian is not "creditable compensation" in relation to the Kentucky Employees Retirement System (KERS). Additionally, your letter notes, service credit in two retirement systems is provided for, as is, under certain circumstances, purchase of credit for military service.

As pointed out in OAG 93-75, retirement systems being creatures of statute, whether given sums may be credited to a retirement system depends on whether the sums are "creditable compensation" under the statutes governing a given system.

OAG 93-75, by express reference to the applicable statutes, stated why, from a legal perspective, monies paid to a circuit clerk, as ex officio county law librarian, could not be credited to either the KERS or the CERS. OAG 93-75, however, provided, somewhat greater detail concerning whether the payments in question could be credited in relation to KERS, than it did in finding that the payments could not be credited in relation to the CERS.

"Creditable Compensation" in CERS

Concerning crediting the payments in question to the County Employees Retirement System (CERS), KRS 172.110(1) provides that:

The circuit clerk shall be ex officio librarian of the county law library, and he shall see that county and state officials have access to the library at reasonable hours each day except Sunday and holidays. He shall receive a salary of not less than fifty dollars ($50.00) nor more than one hundred dollars ($100) per month for his services as librarian.

"Creditable compensation" in the CERS, is defined, in part pertinent here, in KRS 78.510(13), as "all salary, . . . paid to the employee as a result of services performed for the employer . . . ."

"Employee," in relation to the CERS, in part pertinent here, is defined in KRS 78.510(6) as follows:

'Employee' means every regular full-time appointed or elective officer or employee of a participating county . . . . The term shall not include persons engaged as independent contractors, seasonal, emergency, temporary, and part-time workers.

Application of Statutes

In our view the nominal salary provided for the circuit clerk's services as ex officio county law librarian (KRS 172.110(1), above), clearly indicates that such services are provided on a part-time basis. KRS 78.510(6) (see above) excludes part-time workers from the definition of "employee" as used in the definition of "creditable compensation" (KRS 78.510(13)) within the CERS. Accordingly, the circuit court clerk, as a part-time worker as ex officio county law librarian, is not eligible to have the salary for part-time work credited in relation to the CERS.

Merged Credit, Purchase of Credit

As to the points about "merged credit" and "purchase of credit," neither affects the determination above.

"Merged credit" applies to the circumstance of "creditable compensation" obtained in two separate retirement systems. See, for example, KRS 78.605(1). In an example given in your letter, it appeared likely that a full-time deputy county clerk had "creditable compensation" in relation to CERS, in such full-time position, and later had what presumably was full-time service with the Cabinet for Human Resources, creditable under KERS. As pointed out in OAG 93-75, and in this opinion, the payment for part-time work as ex officio county law librarian does not constitute "creditable compensation" within the meaning of applicable statutes.

Regarding purchase of retirement service credit, although credit may be purchased in relation to other employment under specific statutory terms, for example, military service, (See KRS 78.605(1)), there is no provision authorizing purchase of credit for part-time service under the facts here involved.

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General