dissenting.
I dissent from the majority opinion because I think it gives too little significance to Sec. 2(3) of 101 KAR 1:120, which says:
“The appointing authority and the department shall attempt to place the employee in another position for which the employee is qualified.”
It seems to me that the very least a state agency should do for a tenured employe before laying him off is to make some reasonable effort to see if it cannot place him in some other position for which he is qualified. Certainly this could be done without a wholesale “bumping” of personnel from top to bottom. The suggestion in the majority opinion to the effect that Ayers’ claim “strikes at the very heart of the state personnel merit system” is absurd on its face. As a matter of fact, it appears to me that the converse is true.
As I understand the record in this case, there were in fact other positions in the agency that could have been filled by Ayers, but none was offered him before he was laid off. I fully agree with his position that in the absence of such an offer he was not properly terminated, and that he did not have to sign up on a waiting list in order to contest it.