Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS Chapter 18A
NECESSITY, FUNCTION, AND CONFORMITY: This administrative
regulation repeals 200 KAR 12:010, relating to the calculation of compensation
due a state employee following the Personnel Board's or a court's adjudication
of an appealed personnel action. This administrative regulation also
establishes a modified procedure for calculating the foregoing compensation.
Furthermore, this administrative regulation repeals 200 KAR 6:035, pertaining
to the leasing of real property on behalf of various state agencies. The
provisions of that administrative regulation have been codified under
KRS 56.830.
Section 1. Definitions. The following terms,
words or phrases shall have the meaning assigned herein, unless the context
indicates otherwise:
(1) "Adjudicated
penalization" shall include, but not be limited to, the demotion, dismissal,
suspension, fine or any other personnel action for which, after appeal, an
employee is ordered either by the Personnel Board or by a court of competent
jurisdiction to be reinstated to his former position or like position without
loss of pay.
(2) "Corrective dates
or corrective period" are synonymous terms for the period between the date of
adjudicated penalization or removal from the payroll and the date of
reinstatement to a former position or a position of like status and pay as
provided by
KRS
18A.095.
(3) "Gross pay" means the gross amount of pay
which an employee would have earned during the corrective period.
Section 2. Time of Payment. When
the Personnel Board or a court of competent jurisdiction has ordered an
employee reinstated to his former position or a like position without loss of
pay, the appointing authority shall within a reasonable time thereafter cause
the amount of compensation to which such employee is entitled for the
corrective period to be calculated as provided in this administrative
regulation.
Section 3. Calculation
of Gross Pay.
(1) Calculation of gross pay
shall be limited to the amount of gross salary or wages which would have been
earned by the employee during the corrective period. If the employee dies or
becomes permanently and totally disabled for the performance of duties of the
position to which he is entitled to be reinstated prior to his reinstatement,
the date of death or the date of total disability shall be deemed to be the
last date to which such employee shall be entitled to be paid. In the case of a
permanently and totally disabled employee, the last date may be extended by the
number of days of sick or annual leave days accrued and to which he is entitled
as provided in Section 7 of this administrative regulation.
(2) Gross pay for a full-time employee shall
be based on the following:
(a) The grade,
classification and monthly pay rate in effect at the time of the adjudicated
penalization, plus;
(b) Changes in
classification in employee's position or the pay rate by reason of wage
surveys, administrative action or legislation;
(c) Allowable increments for which the
employee could have been considered eligible by the appointing authority during
the corrective period;
(d) Any
other changes which would affect the amount of compensation which the employee
would otherwise have received if the adjudicated penalization had not
occurred.
(3) Part-time
employees shall be entitled to all pay increases applicable to full-time
employees as set out in paragraph (2) of this subsection, if such employee
would otherwise have been eligible to receive them during the corrective period
under the administrative regulations of the Department of Personnel.
(4) Gross pay for a part-time employee shall
be determined by one (1) of the following methods:
(a) Averaging the number of hours worked by
other employees of the agency in the same locality under the same type of
appointment, performing the same kind of work that the employee would have
performed during the corrective period;
(b) Averaging the hours per week the employee
worked during the calendar year preceding the adjudicated
penalization.
(5) An
employee demoted in grade, and consequently, ordered reinstated to his former
position or to a position of like status and pay pursuant to
KRS
18A.095, shall be eligible to be paid the
difference in salary that he would have earned at his former pay rate and the
salary that he earned at the pay rate to which he was demoted for all the
entire period of his demotion.
Section 4. Retirement Calculations.
(1) Employer and employee contributions to
the Kentucky Employees' Retirement System shall be calculated on the basis of
the employee's gross pay. Reductions in the amount due the retirement system
shall be made if a portion of these costs were paid during the corrective
period, as in the case of a demoted employee.
(2) An employee ordered reinstated by the
Personnel Board or a court of competent jurisdiction and who has previously
withdrawn his contributions to the retirement system, may elect after
reinstatement, to repay the amount withdrawn by deduction from any compensation
due him; or, if no compensation is due the employee, then the employee may pay
this amount by check. The appointing authority shall in any event pay the
employer's share of contributions to the retirement system plus interest at the
current legal rate on the employer-employee contributions provided that the
employer's share has not previously been paid to the system during the
corrective period.
Section
5. Setoff Income.
(1) Except as
provided in this subsection, the employee's gross earnings from other
employment during the corrective period, shall be setoff against his gross pay
as determined in Section 3 of this administrative regulation, to the extent
that this income was earned in a number of hours not in excess of the hours the
employee would have worked prior to the adjudicated penalization. Furthermore,
the income earned during the corrective period shall not be setoff against an
employee's gross earnings from other employment, if the income was being earned
prior to the corrective period.
(2)
In order to determine an employee's gross earnings from other employment during
the corrective period, the employee shall furnish the appointing authority with
an employee's affidavit, on that form to be provided by the Department of
Personnel stating the amounts and sources of all his income during the
corrective period.
(3) The income,
property or assets of the spouse of the employee shall not be considered in
determining the amount of the employee's income to be setoff against the
employee's gross pay.
Section
6. Deductions. The appointing authority shall make deductions for
the following:
(1) Federal and state income
taxes;
(2) Any applicable local
payroll and occupational license taxes;
(3) Social Security taxes required by federal
and state laws and the applicable regulations of the federal Internal Revenue
Service, the Kentucky Revenue Cabinet, and Social Security Administration;
and
(4) The amount required to
reimburse the state unemployment fund for those unemployment compensation
benefits received by the employee during the corrective period.
Section 7. Annual and Sick Leave.
(1) The appointing authority shall calculate
the number of days of annual and sick leave that the employee would have
accumulated during the corrective period.
(2) When an employee has been ordered
reinstated to his former position or a like position, all annual leave and sick
leave and compensatory time that the employee accrued and for which he was not
paid at the time of dismissal, shall be reinstated.
(3) An employee who does not desire to be
reinstated, but who seeks only compensation, may be paid for annual leave time
which would have accrued to him during the corrective period based on the
Department of Personnel administrative regulations governing the accumulation
of annual leave time in effect during the corrective period.
STATUTORY AUTHORITY:
KRS
18A.105