Does a Kentucky fire protection district have to give firefighters paid military leave?

Plain-English summary

A firefighter who also serves in the Kentucky Air National Guard, along with his union local, asked whether his employer (the Fern Creek Fire Department, a fire protection district created under KRS Chapter 75) has to give him paid military leave when he is called to military duty. Kentucky law requires "counties, municipalities, school districts or other political subdivisions of the state" to grant paid military leave to employees who serve in the Guard or reserves. The question was whether a fire protection district counts as one of those "other political subdivisions."

The Attorney General concluded that it does. The opinion pointed to KRS 75.070(1), which says a fire protection district and its personnel are an "agent of the Commonwealth," and to the Kentucky Supreme Court's decision in Caneyville Volunteer Fire Dept., which treated Chapter 75 fire districts as political subdivisions entitled to sovereign immunity. Because a fire district is a political subdivision of the state, KRS 61.396 (which carries the benefit in KRS 61.394 over to political subdivisions) imposes a mandatory duty to provide paid military leave. An eligible employee gets up to 21 days of paid leave per federal fiscal year, with unused leave carried over but expiring two years after it accrues.

The opinion rejected the department's argument that a "special district" is somehow excluded from the phrase "other political subdivisions of the state." It read the statute's language broadly and noted it would be inconsistent to treat firefighters as agents of the Commonwealth when they fight fires but deny them the leave the General Assembly gave to political-subdivision employees. The opinion declined to address what remedies might be available for leave that was wrongly denied, saying that question is better suited for private counsel.

What this means for you

Firefighters and National Guard members

Under this opinion, if you are a firefighter employed by a KRS Chapter 75 fire protection district and you serve in the National Guard or a reserve component, your employer must grant you paid military leave under KRS 61.394 and KRS 61.396 when you serve under competent orders, up to 21 days per federal fiscal year.

Fire districts and public employers

The opinion holds that a fire protection district created under KRS Chapter 75 is a political subdivision of the state, so the mandatory military-leave duty in KRS 61.396 applies to it. The opinion rejected the view that a "special district" falls outside "other political subdivisions of the state."

Human resources administrators

The opinion describes the benefit as up to 21 calendar days of paid leave in a federal fiscal year, with unused leave carried over but expiring two years after it accrues. (A companion opinion, OAG 21-14, addresses how to count those days for firefighters on non-standard shift schedules.)

Common questions

Q: Does a Kentucky fire district have to pay military leave?
A: Yes, according to this opinion. The Attorney General read KRS 61.396 to impose a mandatory duty on fire protection districts created under KRS Chapter 75 to provide paid military leave.

Q: Why is a fire district covered when the statute lists counties and cities?
A: The statute also covers "other political subdivisions of the state." The opinion concluded a Chapter 75 fire district is such a political subdivision, relying on KRS 75.070(1) and the Caneyville decision.

Q: How much paid military leave is available?
A: The opinion notes the statute provides paid military leave for a period or periods not exceeding 21 calendar days in a federal fiscal year, with unused leave carried over and expiring two years after it accrues.

Q: Did the opinion say what happens if leave was wrongly denied?
A: No. The opinion expressly declined to address available remedies, saying that question is more appropriately directed to private legal counsel.

Background and statutory framework

KRS 61.394 entitles state officers and employees who serve in the National Guard or a reserve component to a paid "leave of absence from their respective duties," without loss of time or pay, for a period not exceeding 21 calendar days in a federal fiscal year, with carryover and a two-year expiration. KRS 61.396 extends the same benefit to "counties, municipalities, school districts or other political subdivisions of the state." The opinion concluded that a fire protection district created under KRS 75.010 is such a political subdivision, relying on KRS 75.070(1) (fire district personnel are an "agent of the Commonwealth") and Caneyville Volunteer Fire Dept. v. Green's Motorcycle Salvage, Inc. (Chapter 75 fire districts are agents of the Commonwealth entitled to sovereign immunity), and analogizing to Louisville Extension Water Dist. v. Diehl Pump & Supply Co. (water district created under KRS Chapter 74 is a political subdivision).

Citations and references

Statutes:
- KRS 61.394 (paid military leave; 21-day cap); KRS 61.396 (political subdivisions)
- KRS 75.010 (creation of fire protection districts); KRS 75.070(1) (agent of the Commonwealth)

Cases:
- Caneyville Volunteer Fire Dept. v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790 (Ky. 2009)
- Louisville Extension Water Dist. v. Diehl Pump & Supply Co., 246 S.W.2d 585 (Ky. 1952)

Source

• Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
• Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG%2021-07.pdf

Original opinion text

The full opinion as issued by the Office of the Kentucky Attorney General:

Commonwealth of Kentucky
Office of the Attorney General
Daniel Cameron, Attorney General
Capitol Building, Suite 118, 700 Capital Avenue, Frankfort, Kentucky 40601
August 3, 2021
OAG 21-07
Subject: Whether KRS 61.396 requires a fire protection district created pursuant to KRS Chapter 75 to provide paid military leave to firefighter employees serving in the National Guard.
Requested by: Colin Gardner, Firefighter, Fern Creek Fire Department; and Natalie S. Taylor, President, Jefferson County Professional Firefighters Local 3972
Written by: Marc Manley, Assistant Attorney General
Syllabus: KRS 61.394 and KRS 61.396 require a fire protection district organized pursuant to KRS Chapter 75 to provide paid military leave to employees who are members of the National Guard, or any other reserve component of the United States Armed Forces, when the employee is serving under competent orders of those military forces.

Opinion of the Attorney General

Kentucky law requires all counties, municipalities, school districts, and other political subdivisions of the state to provide annual military leave to all officers and employees who are members of the National Guard or of any reserve component of the Armed Forces of the United States in accordance with KRS 61.394. At issue is whether that mandate applies to a fire protection district created pursuant to KRS 75.010.[1] For the reasons that follow, it is the Attorney General's opinion that it does.

Under KRS 61.396 "[a]ll officers and employees of counties, municipalities, school districts or other political subdivisions of the state who are members of the National Guard or of any reserve component of the Armed Forces of the United States, including the United States Public Health Service, shall be granted annual military leave by their respective employers as provided in KRS 61.394." KRS 61.394 provides, in relevant part, that "all officers and employees" serving in the National Guard or other reserve service are "entitled to leave of absence from their respective duties, without loss of time, pay, regular leave, impairment of efficiency rating, or of any other rights or benefits to which they are entitled[.]" Thus, under KRS 61.394, an eligible employee is entitled to a maximum of 21 days of paid military leave each fiscal year. In addition, the statute expressly provides that any unused military leave be carried over to the next year, but that it expires two years after it has accrued. KRS 61.394.

The General Assembly has provided that a fire protection district and its personnel "shall be considered an agent of the Commonwealth of Kentucky." KRS 75.070(1). Likewise, the Kentucky Supreme Court has held that a fire protection district, created under KRS Chapter 75, is a political subdivision of the state. Cf. Caneyville Volunteer Fire Dept. v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 804-05 (Ky. 2009) (holding that KRS Chapter 75 fire districts are agents of the Commonwealth entitled to sovereign immunity); see also Louisville Extension Water Dist. v. Diehl Pump & Supply Co., 246 S.W.2d 585, 586 (Ky. 1952) (holding that a water district created under KRS Chapter 74 is a political subdivision because it was created pursuant to statute, had a governing body appointed pursuant to statute, and held corporate powers).[2] Therefore, KRS 61.396 imposes a mandatory duty on fire protection districts to provide this benefit to its employees.

Although the statute sets forth a broadly applicable rule, it arises in this particular case of a fire protection district employee that serves as an Airman in the Kentucky Air National Guard. Mr. Gardner is a firefighter employed by the Fern Creek Fire Department. The Fern Creek Fire Department is a fire protection district created under KRS Chapter 75. Thus, it is a political subdivision of the state under KRS 61.396. For this reason, the statutory mandate in KRS 61.396 applies, and it is the Attorney General's opinion that the Department must provide Mr. Gardner the annual military leave to which he is entitled.

For these reasons, it is the Attorney General's opinion that an employee of a fire protection district created pursuant to KRS 75.010 is statutorily entitled to military leave benefits under KRS 61.394.

Daniel Cameron
ATTORNEY GENERAL
Marc Manley
Assistant Attorney General

[1] Although Mr. Gardner asks what remedies may be available for leave perhaps impermissibly denied, the Office declines to address that question because it is more appropriately addressed to private legal counsel.

[2] The Department claims that it is a "special district" because it was created under KRS Chapter 75. According to the Department, "special districts" are not "other political subdivisions of the state" and therefore KRS 61.396 does not apply to them. But KRS 61.396 does not exclude "special districts" from its ambit and instead broadly includes "other political subdivisions of the state." KRS 61.396 (emphasis added). Moreover, KRS 75.070 makes fire district personnel "agent[s] of the Commonwealth" when they respond to fire alarms. It would be inconsistent for the General Assembly to consider fire district personnel to be agents of the state when they are protecting the Commonwealth's citizens, only to silently deny the same firefighters paid military leave because they are employees of a "special district." If that had been the General Assembly's intent, it would have expressly excluded "special districts" from the phrase "other political subdivisions of the state."