Request By:
Mr. James S. Secrest
Allen County Attorney
City-County Building
P.O. Box 35
Scottsville, Kentucky 42164
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On April 5, 1977, regular meeting, the fiscal court met and set salaries for county officials for the new term in 1978. At that meeting the salary for magistrates was set at $400 a month. On April 12, 1977, a called meeting, the fiscal court met again and rescinded the resolution of April 5, 1977, relating to the magistrates. You ask if the order [relating to magistrates] of April 12, 1977, was valid.
The answer is "no". As you suggest, the principle mentioned in OAG 73-352 applies. There we concluded that the setting of compensation is a judicial act, or an act of judicial discretion, which cannot be set aside at a subsequent term except upon the grounds on which judgments of other courts may be set aside. See Sandy Hook Bank's Trustee v. Elliott Co. Fiscal Court, 248 Ky. 498, 58 S.W.2d 637 (1933) 638. For example, if the $400 per month salary was illegal, the fiscal court could subsequently set it aside. The point is that it is not on its face illegal. While the old $260 per month maximum has been retained in KRS 64.530 [see H.B. 17, Ch. 17, Section 20, 1976 Extraordinary Session], justices of the peace were included in the annual adjustment of the rubber dollar maximum in KRS 64.527. To add to this incredibly ambiguous situation, S.B. 18 [Ch. 20, Section 2, 1976 Extraordinary Session] provides that the justice of the peace on the fiscal court and holding office on January 2, 1978, shall receive no less than the total annual compensation received by that official during calendar year 1976.
This ambiguity can only be finally resolved by the courts, unless the legislature cleans it up first. In the meantime the $4800 per year salary voted on April 5, 1977, is not palpably illegal on its face, and we believe it is valid unless turned around by the courts.
Although this is not relevant in view of the above conclusion, since the meeting of April 5, 1977, was one of final adjournment, the fiscal court had no legal opportunity to amend or change its "judicial" act during the remainder of the term. See Meredith v. Sears, Ky., 427 S.W.2d 813 (1968) 814.