Opinion of the Court by Justice VENTERS.
In this opinion, we review an opinion of the Court of Appeals holding that the University of Kentucky is shielded by the doctrine of governmental immunity from the claims of employees who assert that the University breached contractual obligations to provide them with benefits under a long-term disability compensation program adopted by the University.
The state universities of this Commonwealth, including the University of Kentucky, are state agencies that enjoy the benefits and protection of governmental immunity except where it has been explicitly waived by the legislature.
For the reasons explained below, we conclude that the Appellants did not have a "written contract" with their university employer concerning the long-term disability compensation program. Accordingly, we affirm the decision of the Court of Appeals in dismissing Appellants' claims on the basis of governmental immunity.
Our conclusion that Appellants' claims are not based upon a written contract with their university employer makes it unnecessary for us to address the scope of KRS 45A.245 in detail.
We begin our discussion by briefly summarizing the employment claims asserted by the Appellants, and the relevant employment documents upon which they rely in support of their claims to disability benefits.
Appellants Vera Furtula and Anthony Miller were employed for several years by the University of Kentucky. During the time of their employment, the University provided, at no cost to the employee, a self-funded, long-term disability (LTD) benefits program for its regular full-time employees. The program consisted of two complementary plans: (1) the University of Kentucky Initial Salary Continuation Long-Term Disability Plan ("Salary Continuation Plan"); and (2) the University of Kentucky Long-Term Disability Plan ("LTD Plan").
The LTD program is governed by three sets of documents: an employee handbook titled "Staff Handbook"; Human Resources Policies and Procedures (HRP & P) Sections 90.0 and 95.0; and documents adopted by the Board of Trustees that create and govern the programs. The handbook is provided to employees who sign an acknowledgement of having received it. As stated in the University's HRP & P, the "LTD program is intended to make monetary benefits available to an employee in the event of long term total disability."
The Salary Continuation Plan and the Long-Term Disability Plan each provide that "[a participating employee] who becomes totally disabled as a result of accidental bodily injury or sickness ... shall be entitled to [the payments specified by the respective plan.]" Independently of each other, both Furtula and Miller applied for disability benefits, each claiming to have become totally disabled while working at the University. In each case, the University denied the claim after concluding that Furtula and Miller were not "totally disabled."
In Furtula's case, the University moved for summary judgment, arguing that it was entitled to sovereign immunity because it had no contract with Furtula, and that even if the disability program could be construed as a contract, the action on it was barred because it was not in writing. The Fayette Circuit Court denied the University's motion for summary judgment, concluding that there existed "a material issue of fact with regard to whether there has been a waiver of sovereign immunity for this breach of contract claim by the state legislature pursuant to KRS Chapter 45A [the Kentucky Model Procurement Code]." However, based upon the requirement of KRS 45A.245 that actions brought pursuant to the Model Procurement Code "shall be brought in the Franklin Circuit Court," the Fayette Circuit Court also transferred the case to the Franklin Circuit Court.
In Miller's case, the University moved to dismiss on grounds of improper venue and sovereign immunity. The Fayette Circuit Court denied the motion and transferred the case to Franklin Circuit Court pursuant to KRS 45A.245. The Franklin Circuit Court denied the University's motion to dismiss Miller's claim on the grounds of sovereign immunity, though the basis for the decision is unclear. Again invoking Prater, the University appealed the rejection of its claim of sovereign immunity.
The Court of Appeals addressed the Furtula and Miller cases together and reversed both circuit court decisions. The court held that the documents establishing the University of Kentucky's employee disability compensation did not create an implied contract under Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354 (Ky.2005). Specifically, the Court of Appeals held that "none of the plan documents provided to this Court evidence [the] intent to create a contract on the part of the University."
We granted discretionary review to address whether the various documents in this case gave rise to a written contract that fits within the legislative waiver of sovereign immunity provided within the Model Procurement Code.
Fundamental to our review of a contractual claim premised upon an employee handbook is our holding in Parts Depot, 170 S.W.3d at 354. In that case, we considered whether a contractual obligation could be. implied, thus vesting the employee with an equitable contract claim for the employer's failure to follow certain wage provisions contained in the employer's personnel policies. We held that "[o]nce an employer establishes an express personnel policy and the employee continues to work while the policy remains in effect, the policy is deemed an implied contract for so long as it remains in effect. If the employer unilaterally changes the policy, the terms of the implied contract are also thereby changed." Id. at 363.
Basic contract law provides that, as in the case of an express contract, an implied contract
Kellum v. Browning's Adm'r, 231 Ky. 308, 21 S.W.2d 459, 463 (1929) (emphasis added). Similarly, upon application of these principles in Johnson's Adm'r v. Johnson, 244 S.W.2d 969, 972 (Ky.1951) we stated:
With respect to conduct as a manifestation of contractual intent, the Restatement (Second) of Contracts § 19(2) (1981) provides: "The conduct of a party is not effective as a manifestation of his assent unless he intends to engage in the conduct and knows or has reason to know that the other party may infer from his conduct that he assents." Likewise, the Restatement (Second) of Contracts § 26 reflects the conventional contract principle that "[a] manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent." (emphasis added).
In other words, when the recipient of a statement is informed that the maker of the statement does not intend to enter into a contract, as occurred in this case with the University's clear statement that the handbook was not a contract, the formation of a contract will not be implied.
The University of Kentucky's Staff Handbook, one of the documents relied upon by Appellants Furtula and Miller as essential to the contract they allege was formed in connection with their employment, includes this disclaimer, in all capital letters: "THIS HANDBOOK IS NOT A CONTRACT. THE EMPLOYEES OF THE UNIVERSITY ARE `AT WILL' EMPLOYEES AND ARE SUBJECT TO LAY-OFF OR TERMINATION IN ACCORDANCE WITH UNIVERSITY POLICIES AND PROCEDURES."
Specific human resource policies of the University of Kentucky pertaining to the long-term disability program
Such clear and unequivocal disclaimers of contractual intent along with express reservations of the authority to alter and amend the disability policies at any time
Significantly, in our conclusion in Parts Depot that an implied contract did indeed arise from the employer's personnel handbooks and documents, we specifically rejected the employer's reliance upon countervailing cases for the very reason that those cases involved employee handbooks or personnel policies, like the University of Kentucky's, that contained either precatory language or explicit disclaimers of an intention to be contractually bound. Id. at 362-63.
That absence of a contract disclaimer in the personnel policies in Parts Depot was a key underpinning for our holding that an implied contract can arise out of an employee handbook; accordingly, because the employee handbook at issue in this case contained a contract disclaimer, Parts Depot is easily distinguishable. Consequently, in light of the unambiguous and explicit disclaimers contained in the relevant University of Kentucky disability benefit documents, we are compelled to conclude that Appellants Furtula and Miller did not have an enforceable contractual claim for benefits under the University of Kentucky's employee long-term disability compensation plans.
Because Appellants have not established that the General Assembly expressly waived sovereign immunity in claims based upon implied contracts arising from a state university's employee handbooks and personnel policies, and because the relevant University of Kentucky personnel documents specifically disclaimed the creation of a contract, we conclude that sovereign immunity remains to be a valid affirmative defense under the circumstances presented, and the trial court therefore correctly awarded summary judgment regarding Appellants' contract claims against the University. Therefore, we affirm the decision of the Court of Appeals.
CUNNINGHAM and KELLER, JJ., concur. MINTON, C.J., agrees with Justice NOBLE's dissent to the extent that employee handbooks and other documents can be a written unilateral contract sufficient to meet the requirements of KRS 45A.245 but joins the Court's result because the handbook disclaimers and language in other documents reserving the University's right to discontinue the disability-benefits programs show a lack of intent to be bound, which bars the formation of a unilateral contract in this case. NOBLE, J., dissents by separate opinion in which SCOTT, J., joins. ABRAMSON, J., not sitting.
NOBLE, J., Dissenting:
A majority of this Court, with Chief Justice Minton's separate concurrence, has concluded that Vera Furtula and Anthony Miller did not have lawfully authorized written contracts with their employer, the University of Kentucky, and that their claims are therefore not covered by the sovereign immunity waiver in KRS 45A.245 regardless of its applicability to state universities. I cannot join either conclusion, and therefore I dissent.
The majority concludes there were no contracts at all. To reach this conclusion, the majority focuses on disclaimers in the employee handbook and other documents such as the Salary Continuation Plan and Long-Term Disability Plan, stating they are not contracts of employment. In so doing, however, they are reading the disclaimers out of context. While I agree that the disclaimers mean that the documents are not a contract of employment, i.e., one that changes the at-will nature of the employment, that does not mean the
The majority focuses on provisions in various documents reserving to the University the right to modify or abolish the benefit plans at any time and stating that the establishment of a trust and payment of benefits shall not give rise to rights to employees. This position also misreads these provisions, which state that they do not give rise to rights "except as ... provided" elsewhere in the documents. And they do provide rights elsewhere.
There is no question that Furtula and Miller do not have a traditional written bilateral contract with the University of Kentucky. Instead they claim the various documents in this case constitute a contract under Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354 (Ky.2005). In that case, this Court held that an express personnel policy can give rise to contractual rights. Id. at 362-63. Specifically, the Court held that a personnel policy, which can include an employee handbook, "can become a binding contract `once it is accepted by the employee through his continuing to work when he is not required to do so.'" Id. (quoting Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725, 733 (Ala. 1987)).
Such a contract, however, is not a traditional express contract. As this Court noted, the "principle is akin to estoppel," and thus "[o]nce an employer establishes an express personnel policy and the employee continues to work while the policy remains in effect, the policy is deemed an implied contract for so long as it remains in effect." Id. at 363.
Thus the exact nature of such an agreement — such as whether it is written — is largely irrelevant in the private context. Absent an objection based on the statute of frauds, the agreement, whatever its form, is enforceable against a private employer.
No doubt, there is a writing in this case. Indeed, there are multiple writings that appear to give express rights to the University of Kentucky's employees.
The problem here is the insistence that there can only be an implied contract under the facts of this case, which cannot be a "written" contract. At present, "[a]n implied contract is one neither oral nor written — but rather, implied in fact, based on the parties' actions." Hammond v. Heritage Communications, Inc., 756 S.W.2d 152, 154 (Ky.App.1988) (emphasis added). Indeed, that is all the Court considered in Parts Depot. But whether there is a written contract has been made an issue in this case, and the facts show that there is a writing — actually more than one. If there is a writing expressing the
I depart from the majority, not because I would find that you can have an implied written agreement, but because I believe that Parts Depot was tied to its issues, and thus does not directly apply to contracts with the state which must be in writing. The Court in Parts Depot was imprecise in concluding that the agreement at issue in an employee-handbook case is only an implied contract question.
After further review of the law on the subject, it appears that while the agreement in such a case may be an implied contract, it certainly is a unilateral contract. In fact, the Court said as much in Parts Depot:
Parts Depot, 170 S.W.3d at 362-63 (quoting Cook v. Heck's Inc., 176 W.Va. 368, 342 S.E.2d 453, 459 (1986)) (emphasis added).
The focus in Parts Depot was on whether there was a binding agreement, not on the nature of the agreement. In this case, the handbook and other written documents created a written unilateral contract, the terms of which were written by the University inviting performance by the employees.
Indeed, this is likely the better take on employee-handbook cases generally. The agreements in such cases, if they in fact exist, are not pure implied contracts because of the manner in which they are proved. "[A] `contract implied in fact' ... differs from an `express contract' only in the mode of proof required; and it is implied only in that it is to be inferred from the circumstances, the conduct, and the acts or relations of the parties, rather than from their spoken words." Victor's Ex'r v. Monson, 283 S.W.2d 175, 176-77 (Ky.1955).
Nevertheless, Parts Depot relied on a substantial writing issued by one party to another describing rights and obligations to find an implied contract. It is highly unusual to find an implied contract in such circumstances, as an implied contract is neither oral nor written, Hammond, 756 S.W.2d at 154, nor is it proven by the parties' words, Victor's Ex'r, 283 S.W.2d at 176-77.
The better understanding is that such a writing is a unilateral contract accepted by performance. "Unilateral contracts have long been recognized by the law." Jackson v. Pepper Gasoline Co., 280 Ky. 226, 133 S.W.2d 91, 93 (1939). Such a contract "is defined as `one in which no promissor [sic] receives a promise as consideration for his promise.'" Id. (quoting Restatement of Contracts § 12). A unilateral contract is promise on one side accepted by performance on the other, with the performance, rather than a second
Employee-handbook cases are one of the few areas where unilateral contracts are likely to arise in modern law. Indeed, "[i]t is relatively rare for an offeror to seek acceptance by performance rather than by a promise." Farnsworth, supra, § 3.12, at 267. But "[p]articularly important are the handbook cases, in which an employee claims that an employer has, by distributing a handbook to employees, made an offer to modify the traditional at-will relationship and that the employee has accepted that offer by performing or continuing to perform." Id.
Here, the various documents contain provisions that invite performance. For example, if an employee works for a year, the employee becomes a participant in the Long-Term Disability (LTD) program, that is, becomes eligible for benefits. Thus, the documents promise to provide benefits upon the employee's performance, that is, working for at least one year. There is a writing, an offer, and acceptance by performance.
In this sense, the case is very much like City of Houston v. Williams, 353 S.W.3d 128, 131 (Tex.2011), which while not binding on this Court is instructive and persuasive. In Williams, a group of city firefighters sought to sue the city of Houston, claiming that a series of ordinances constituted a contract for benefits sufficient to meet Texas's statutory waiver of sovereign immunity. Like Kentucky, Texas requires a written contract before a waiver will be found. Id. at 134.
The Texas Supreme Court noted that ordinances are the means by which the city conducted its business. Id. at 136. It concluded that the ordinances, under a theory of unilateral contract, "comprise a contract, and that contract is in writing." Id. at 138.
The court explained that the city had manifested an intent to be bound or "to act in a specific way in the Ordinances by its extensive use of the word `shall' and similar provisions that make the benefits offered to the Firefighters mandatory upon performance." Id. (footnote omitted). The court also explained that the ordinances were written by the city and were "addressed to a discrete group of offerees: those persons qualifying as `eligible employees.'" Id. Based on these factors, the court concluded that "the Ordinances constitute[d] an offer that was communicated to the Firefighters, which the Firefighters
In this case, the University has manifested its intent to be bound by the frequent use of "shall" and "will" in the various handbooks, policies and procedures, and plan documents to state when the plan participants become eligible and what they will receive upon total disability. The documents also address a discrete group of offerees: eligible regular employees. At least one of the documents, the Staff Handbook, is given directly to employees, and the other documents are available on the University's website or referenced in the handbook or other documents. From this, I can conclude that the University communicated an offer to its employees, who accepted the offer by performing, i.e., working for the University.
Williams also noted that the ordinances prescribed what was required of performance, namely services for the city. Id. In this case, the University's documents also state what is required by the employees: they must work for the University (i.e., be employees) for one year, and must become totally disabled to get benefits.
Williams further stated that the contract was in writing and could be embodied in more than one document, i.e., the various ordinances in effect. Here, the contract is clearly in writing, albeit in more than one document — the University has issued the handbook, the human-resource policies and procedures, the two plan documents, and the trust agreement. All the terms of the purported agreement are laid out in the various documents, often repeatedly since many of the documents repeat provisions in identical or substantially the same language.
That the contract is accepted by performance does not mean it is not in writing. The performance is not the contract; the performance is merely the acceptance of the contract. In a unilateral contract, the performance is the consideration (as opposed to a mutual promise). The performance is also the functional equivalent of the signature on a standard bilateral contract. But it is not the contract itself. Rather, all the provisions that Furtula and Miller seek to enforce against the University, or to base their claims upon, are in writing — in the University's various documents. That is enough for a written contract.
And Williams also noted that "the Ordinances state the essential terms of the agreement between the Firefighters and the City," and those terms included "compensation, duties or responsibilities," which were plainly included in the ordinances. Id. at 138-39. Here all the terms are laid out in the various documents.
Ordinarily, whether the contract was one implied in fact or a unilateral contract would not matter — the outcome of such cases is the same. A court would find the existence of an agreement binding the parties, which could allow for an action for breach or enforcement. But, as with the distinction between written and unwritten agreements, the difference between implied and unilateral contracts matters when dealing with a governmental agency. In Kentucky, the law allows actions for breach or enforcement only for certain kinds of contracts, specifically, lawfully authorized written contracts. KRS 45A.245. The particulars matter only in the governmental sphere, where, as in Kentucky, sovereign immunity bars claims on contracts unless the contracts are written. When the government is involved — as illustrated by this case — the particulars are paramount.
I agree with Parts Depot that an employee handbook — a written document — can be a unilateral contract. I conclude that like the Houston ordinances in Williams, the University's documents in
Moreover, the documents "constitute [a] written contract[]." Williams, 353 S.W.3d at 131. There is no question that the handbook and other documents are in writing. This is sufficient to satisfy the requirement of a "written contract" under KRS 45A.245. As noted above, KRS 45A.245 encompasses all lawfully authorized written contracts. And the definition of "written" is very broad. See KRS 45A.030 (29) ("Writing' or `written' means letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation."). And unlike an implied written contract there is no contradiction in finding a written unilateral contract.
Thus, I would find that Furtula and Miller had written agreements with the University as contemplated by KRS 45A.245.
As noted above, the majority concludes that various disclaimers in the documents are sufficient to avoid their being read as a contract at all under Parts Depot. I disagree and conclude that disclaimers are ineffective to bar a finding of a unilateral contract for benefits, even though the disclaimers may prevent the documents from altering the at-will nature of the employment.
The first disclaimer cited by the majority appears in the handbook. It states, in all capital letters: "THIS HANDBOOK IS NOT A CONTRACT. THE EMPLOYEES OF THE UNIVERSITY ARE `AT WILL' EMPLOYEES AND ARE SUBJECT TO LAY-OFF OR TERMINATION IN ACCORDANCE WITH UNIVERSITY POLICIES AND PROCEDURES." The first sentence of this disclaimer must be read in the context of the entire disclaimer, which is clearly focused on maintaining at-will employment. At most, this disclaimer prevents the handbook from being a contract of employment with, for example, a term. It does not mean that the handbook cannot give rise to a contract for other things, such as long-term disability benefits. And even if the disclaimer is effective as to the handbook being a contract, it cannot be effective against the other documents (the human-resources policies, benefits-plan documents, and trust agreement), which are also sufficient to give rise to a contract for benefits.
The majority also cites Salary Continuation Plan § 8.01, which states that nothing in it "shall be construed as a contract of employment between the [University] and any Employee, or as any right of any Employee to be continued in the employment of the Employer, except as may be protected under the Age Discrimination in Employment Act Amendments of 1978." Again, this only goes to whether the at-will
If anything, the at-will disclaimers enforce the notion that the employees have a unilateral contract for various benefits. An employment contract would consist of mutual promises to be executed in the future. Any promise would be enforceable upon the exchange of those mutual promises. Thus, an employee under an employment contract agrees to work in the future for the employer, perhaps exclusively and with a non-compete provision, in exchange for job protection, such as terminable for cause instead of at will. The at-will disclaimers show there is no such exchange of mutual promises.
Under a unilateral-contract theory, the employer's promise is only enforceable upon performance by the employee. Such agreements are largely past-oriented, since they are enforceable only for past performance. It is thus telling that the University's disclaimers are only oriented toward the future, to disclaim any exchange of mutual employer-employee promises to be executed in the future.
Instead, the employee only gets what he or she earns by performance. If she works a certain number of hours, she only gets paid for those hours, and cannot claim she is entitled to wages or salary in the future (unless she works in the future). Similarly, if the employee works for the employer long enough to vest into disability benefits — one year, in this case — then the employee is vested into those benefits and earns a contractual right to them, assuming the employee can prove total disability. (Indeed, and sadly, becoming disabled is the ultimate "performance" of the unilateral contract, entitling an employee to monetary benefits, rather than the potential for benefits, under these documents.)
The majority also points to the various other provisions, such as Human Resources Policies & Procedures 90.0, stating that the university can alter, amend, or terminate the LTD program at any time. Such disclaimers are not effective as to a unilateral contract to the extent it has already been performed. While the University could do away with the benefits program in the future, it does not claim it could stop giving benefits to existing beneficiaries. Indeed, the trust agreement itself requires that the trust corpus be distributed to such existing beneficiaries upon termination of the program, and states that the funds may only be used for their benefit. (Thus, those employees who have engaged in the ultimate "performance" — becoming disabled — cannot lose their benefits, except under the majority's reading of these documents, which state that even those employees have no contract.)
In fact, the majority's own discussion of Parts Depot shows that this is an acceptable part of the employer-employee contract evinced by employee handbooks and similar documents, and that the power to alter the agreements going forward does not change the agreement that has already been accepted by past performance. As the majority quotes at the beginning of its discussion, "[o]nce an employer establishes an express personnel policy and the employee continues to work while the policy is in effect, the policy is deemed an implied contract for so long as it remains in effect." Ante at 308 (quoting Parts Depot, 170 S.W.3d at 363). This is so even though the employer can unilaterally change the policy at any time. If that happens, then "the terms of the implied contract are also thereby changed." Id. (My only quibble here is that "implied
Again, this disclaimer presents a scenario like that in the Texas case, Williams. There, a provision in the ordinances stated that they did not "create a vested right of compensation for sick leave benefits or, where applicable, for termination payments." City of Houston v. Williams, 353 S.W.3d 128, 140 (Tex.2011). The court concluded that the disclaimer was ineffective as to benefits already earned by the firemen's performance. Specifically, the court distinguished this disclaimer from those disclaiming the creation of an employment or tenure contract. Id. It went on to state: "Disclaiming a vested right to compensation is not equivalent to a disclaimer of contractual intent — to the contrary, an employee may have a valid employment contract, promising that benefits will accrue upon performance, but those benefits will not vest until the employee actually performs." Id. The court concluded:
Id. (footnote omitted).
So too here, the provisions allowing amendment or termination of the LTD program were merely a warning to the University's employees that their benefits were subject to change. Upon performance, however, the illusory becomes real, and a contractual obligation is thus born out of acceptance by the employee's performance.
The majority concludes that nothing in this record shows a mutual intent to enter into a contract, and certainly no intent on the part of the University. That is far from the case. All of the basic elements of a contract — offer, acceptance, and consideration — are present here. What is conceptually difficult about this case is that it does not present a standard bilateral contract signed by both parties. Instead, it presents a set of writings evincing a unilateral contract for benefits, which employees accept by performance, that is, by working and eventually by becoming disabled.
Having concluded that each of the employees had a written unilateral contract with the University, I must, unlike the majority, determine whether the waiver of sovereign immunity contained in KRS 45A.245 applies to the employees' contracts. I conclude that it does.
It has been argued that state-university employees are not hired under the Code because their "contracts," though arguably for "services," cannot be, "contracts" as defined in the Code.
I would resolve the conflict in another way. I agree that there is an apparent conflict, which requires us to engage in statutory construction to harmonize the statutes. See Light v. City of Louisville, 248 S.W.3d 559, 563 (Ky.2008). But to the extent possible, we are to "resolve the conflict between the two statutes so as to give effect to both." Id.
We can resolve the conflict without reading the entire Code as inapplicable to state-university contracts by applying the "general/specific canon"
But that does not mean that other provisions of the Code that are not in conflict with the university-specific statutes should not apply, nor does it require us to conclude that the University's agreement with its employees are not contracts. To the extent possible, the general provisions should be applied. Cf. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 184 (2012) ("Note that the general/specific canon does not mean that the existence of a contradictory specific provision voids the general provision. Only its application to cases covered by the specific provision is suspended;
There is no conflict between the definition of "contract" and the waiver of sovereign immunity for contract actions in KRS 45A.245, on the one hand, and the statutes controlling state universities and allocating power to their boards of trustees on the other. (In fact, any statute purporting to allow a board of trustees to decide whether its immunity should be waived is likely unconstitutional, since the power of waiver is granted explicitly to the General Assembly. See Ky. Const. § 231.) Thus, while the University is not subject to many provisions of the Code when it comes to hiring employees, it is subject to any other provision of the Code that does not create a conflict.
To do more than that is to move beyond harmonizing conflicting statutes to brutalizing an entire statutory scheme because of the conflict. There is a better way to resolve the conflict, one that leaves intact as much of the Code as possible. Applying the general/specific canon of construction does that. I would thus conclude that the University should be subject to KRS 45A.245. Its immunity for written contract actions has been waived.
This harmonizing of the statutes comports with the language of the waiver provision itself, which states: "Any person, firm or corporation, having a lawfully authorized written contract with the Commonwealth..., may bring an action against the Commonwealth on the contract, including but not limited to actions either for breach of contracts or for enforcement of contracts or for both." KRS 45A.245(1) (emphasis added). The waiver is not limited to contracts entered into under the Code; rather, the waiver applies to all lawfully authorized written contracts. This necessarily includes contracts whose authority lies outside the Code.
That this is the correct interpretation is further shown by the fact that the state's waiver of immunity for contract actions pre-existed the Code. The waiver provision was first enacted in 1966, see 1966 Ky. Acts. Ch. 180, § 2, in response to Foley Construction Co. v. Ward, 375 S.W.2d 392 (Ky.1963), which held that sovereign immunity barred contract claims against the Commonwealth. See Goss v. Sparta Stockyards, Inc., 481 S.W.2d 39, 40 (Ky. 1972). The Code was not enacted until 1978 and went into effect in 1979. See 1978 Ky. Acts ch. 110. Prior to that, the waiver language was included in substantially the same form in KRS Chapter 44, see KRS 44.270 (1966); 1966 Ky. Acts. Ch. 180, § 2, and eventually the same form, see KRS 44.270 (1976); 1976 Ky. Acts ch. 297, § 1.
However, it is important to note that KRS Chapter 44, where the waiver provision originally appeared, is titled "Claims upon the treasury" and lays out most of the legislation promulgated under Section 231 of the Kentucky Constitution,
And, as interpreted at that time, the provision applied to employment contracts, including those with the University of Louisville. See Univ. of Louisville v. Martin, 574 S.W.2d 676, 679 (Ky.App. 1978) (holding that action on alleged employment contract should have been brought in Franklin Circuit Court, as required by the waiver statute). Interestingly, the alleged contract in Martin was an earlier form of the Redbook, which is at issue in the present case against the University of Louisville. And, since the Model Procurement Code did not exist, the Act must have applied to non-Code contracts.
If the waiver provision applied to such agreements before 1978, then it must also have done so afterward, up to and including today. The waiver language was not changed in any way when it was repealed and reenacted, and it has not been amended since then. Nothing in the move from Chapter 45 to the newly created Chapter 45A suggests that the language was from that point forward intended to mean something else, as the majority suggests.
Indeed, the fact that the Contract Claims Act was reenacted in an identical form suggests the opposite: that the General Assembly intended the meaning to be the same, that is, to continue the waiver for all lawfully entered contracts with the Commonwealth. Cf. Hughes v. Commonwealth, 87 S.W.3d 850, 855 (Ky.2002) ("[T]he failure of the legislature to change a known judicial interpretation of a statute [is] extremely persuasive evidence of the true legislative intent. There is a strong implication that the legislature agrees with a prior court interpretation when it does not amend the statute interpreted." (quoting Rye v. Weasel, 934 S.W.2d 257, 262 (Ky.1996)) (second alteration in original)).
The General Assembly has had ample opportunity to change the contract-waiver provision since 1978, and it has not done so. It has never taken any step to limit the scope of the waiver first enacted in 1966. That waiver applied to all lawfully written contracts with the Commonwealth when enacted in 1966, and it still does today.
The waiver of sovereign immunity in KRS 45A.245, therefore, must apply to the contracts at issue in this case.
I would conclude that KRS 45A.245 applies to the University's contracts with its employees, allowing those employees to sue in court for enforcement or breach of the contracts. I would also conclude that the employees have written unilateral contracts with the University, containing sufficiently clear offers that they accepted by working for the University. Both Furtula and Miller worked long enough to vest into their benefits programs, and both alleged that they have become sufficiently disabled to qualify for payment under the benefits plans. They should be allowed to bring their claims under KRS 45A.245.
SCOTT, J., joins.