City of Covington v. Peare

769 S.W.2d 761, 1989 Ky. App. LEXIS 50, 1989 WL 41136
CourtCourt of Appeals of Kentucky
DecidedApril 28, 1989
DocketNo. 87-CA-2588-S
StatusPublished
Cited by4 cases

This text of 769 S.W.2d 761 (City of Covington v. Peare) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Covington v. Peare, 769 S.W.2d 761, 1989 Ky. App. LEXIS 50, 1989 WL 41136 (Ky. Ct. App. 1989).

Opinion

WM. R. DUNN, Special Judge.

This appeal is from the summary declaratory judgment of the Kenton Circuit Court in the form of mandatory injunctive relief against the appellant, City of Covington, on behalf of appellees. Robert J. Peare and Clarence Vastine are retired professional fire fighters of the appellant city of the second class. This case concerns the actions of Covington’s Board of Trustees of the Policemen’s and Fire Fighters’ Retirement Fund, however the Board is not a party to this appeal.

Peare initiated the action pursuant to KRS 418.040, our declaratory judgment statute, against the City and joined the Board by amendment. Vastine by leave of court intervened as a party plaintiff. Peare and Vastine questioned the Board’s interpretation of KRS 95.581(13) and KRS 95.859.1 Article XIX of the Covington Professional Fire Fighters’ Union collective bargaining agreement with the City requires payment at retirement of terminal leave pay of unused accrued sick leave prior to June 30, 1976, and terminal leave pay for unused accrued vacation time. The issues here involve the application of Peare’s and Vastine’s terminal leave pay in the light of these two (2) statutes to determine Peare’s and Vastine’s respective retirement annuities.

Peare’s case concerns unused accrued sick leave incurred prior to June 30, 1976. He maintains his terminal leave pay was “salary” and should be included as part of his annual salary for the last year he worked. This would increase his retirement annuity by including his retirement year as one of the three (3) consecutive years of service used to determine his highest average annual salary under KRS 95.-851(13) to which is then applied the two and one-half percent (2½%) formula of KRS 95.859. In the same vein Vastine adopts this position but with reference to unused accrued vacation pay.

The Board in determining the respective retirement annuities and the City in the trial court and on this appeal argue that the payments of the unused accrued terminal leave pay were not to be considered as “salary” in calculating the KRS 95.859 annuity pension formula but were paid as one time bonuses upon retirement. Alternatively, they argue that if “salary,” the terminal leave pay was not to be added to the retirement year as annual salary for that year but was to be added as annual salary for the year in which it was earned or accrued.

With respect to Vastine’s vacation accrual, they also alternatively argue that, if it is to be utilized as part of a pension calculation, it should be further considered from a chronological point of view as unused accrued weeks and applied in such a way that the computation is limited to three (3) years or one hundred and fifty-six (156) weeks rather than as from a financial point of view as accrued salary but paid within the time frame of the same one hundred and fifty-six (156) weeks as concluded by the trial court.

[763]*763The trial court in responding to the parties’ motions for summary judgment agreed with Peare and Vastine and entered a judgment in their favor against “the Defendants [sic] The City of Covington, Kentucky.”

There were two (2) aspects to the judgment. The first determined that the terminal leave paid to Peare and Vastine pursuant to the collective bargaining agreement “is part of their annual salary for purposes of computing the retirement annuity ... pursuant to KRS 95.851(13) and KRS 95.-859.” The second ordered the City to recompute the respective retirement annuities in such a way as to give Peare and Vastine full credit for the unused accrued sick pay and vacation pay and recovery of “full back benefits resulting from Defendant’s [sic] refusal to consider terminal leave pay as salary for the purpose of KRS 95.851(13) and KRS 95.859” with the accrued pay being added to the three (3) year total salary for one hundred and fifty-six (156) weeks in calculating the pension annuities with twelve percent (12%) post judgment interest.

We have no problem concluding that with respect to the issues the appellant City raises on appeal that the trial court is correct. See McNally v. Grauman, Ky., 73 S.W.2d 28 (1934) and Policeman’s and Firemen’s Retirement Fund of the City of Ashland v. Richardson, Ky., 522 S.W.2d 452 (1975).

These issues are periphery ones, however. The core issue is whether this appeal was taken from a final and appeal-able order of the Kenton Circuit Court. We hold that it was not. Consequently, we dismiss the City’s appeal and remand this case to the Kenton Circuit Court for proceedings consistent with this opinion.2

The retirement fund was legislatively created in KRS 95.852. The City by virtue of KRS 95.868 was required to “make current contributions to the fund on an actuar-ially funded basis, toward the annuities and benefits” provided.

The legislature further created an administrative body for the retirement fund, independent of the City, and provided for its organization and general power in KRS 95.869(1) as follows:

(1) The responsibility for the proper operation of the fund and the direction of its policies shall be vested in a board of trustees of six (6) members, consisting of: (a) the mayor ex officio; (b) the city treasurer ex officio; (c) the chiefs of the police and fire departments ex officio, and (d) one (1) active member of each department, who shall be elected by ballot by the active members of the respective departments and shall serve for a term of one (1) year under rules adopted by the board_ (Emphasis added.)

The statute also provided that the director of law of the city by virtue of KRS 95.872 “serves as legal adviser to the board on all matters pertaining to the fund involving suits or actions of law, and on any questions of the interpretation” of KRS Chapter 95 provisions.

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Cite This Page — Counsel Stack

Bluebook (online)
769 S.W.2d 761, 1989 Ky. App. LEXIS 50, 1989 WL 41136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-covington-v-peare-kyctapp-1989.