Request By:
Mr. Norman Tant
Chairman
Committee for the Courthouse
P.O. Box 654
Morehead, Kentucky 40351
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As a member of the Courthouse Committee you question two actions of the Fiscal Court of Rowan County.
In September, 1976, the fiscal court passed an order providing that the county judge's salary would be increased from $8700 to the maximum salary permissible by law. The coroner's salary was increased from $150 to $350 per month. Magistrates' salary was increased from $280.80 to $480.80.
This action was legal. The increases are within the statutory maximum. See KRS 64.185, 64.530, 64.535, and KRS 64.527. Judicially these are not "increases", they were "purchasing power adjustments" under the rubber dollar principle as enunciated in
Matthews v. Allen, Ky., 360 S.W.2d 135 (1962); and
Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965). The adjustments were permissible since the fiscal court had not exhausted its implementing power [the salaries of these men, prior to this action, were not up to the statutory maximum] . See
Dennis v. Rich, Ky., 434 S.W.2d 632 (1968) 637. We assume the officers concerned actually performed fully their statutory duties during the period for which the raises were effective.
Next, you cite a fiscal court order of October, 1976, providing that the jailer's salary for the calendar year of 1976 be set at $13,168.80, retroactive to January 1, 1976. Thus his total compensation was $16,768.80, the janitorial appropriation of $3600 remaining the same. We think it was within the power of the fiscal court to adjust his salary. See authorities given above. But his earning the money is another matter.
In your letter you say that the jail was closed most of 1976; and it is currently closed. It is true that a public officer cannot be paid for work that he does not perform. Section 3, Kentucky Constitution and KRS 64.410. Stated another way, an officer cannot be paid a fee or compensation for services not actually rendered. See
Ray v. Woodruff, 168 Ky. 563, 182 S.W. 662 (1916) 664; and
Webster County v. Vaughn, Ky., 365 S.W.2d 109 (1963) 110.
It is well established that, where county money is paid to an officer in excess of what is due him or what he actually earned, the county can recover such excess money in a suit brought against such officer.
Goodlett v. Anderson County, 267 Ky. 166, 101 S.W.2d 421 (1937). However, since this matter is so factual in nature, it would be up to the courts to determine what portion of the jailer's compensation in 1976, if any, should be paid back into the county treasury. KRS 64.410 was held in
Whitworth v. Miller, 302 Ky. 24, 193 S.W.2d 470 (1946) to apply to general emoluments of office as well as to specific fees for specific services. Cf. KRS 61.120, providing in part that if an officer, paid out of the county treasury, fails or neglects to perform his duties without a good excuse, deductions can be made from his salary to reflect the period during which he does not earn the salary. Here we assume the jailer will claim that the failure to act as county jailer in 1976 is attributed to the fact that the Rowan County Jail was closed the most of 1976 and no substitute building was made available by the fiscal court to serve as a county jail.
The fiscal court has a ministerial duty to secure a sufficient jail at all times. KRS 67.080(4). Thus the fiscal court is by implication placed under the duty to exercise some degree of care and diligence in the performance of such duty. Where, in a court proceeding, it is found that the Rowan Fiscal Court negligently or willfully and wantonly failed to provide a county jail at all times in 1976, and the jailer was required by court order to restore some or all of the compensation [paid him for 1976] to the county treasury, the court might hold the members of the fiscal court individually liable in damages to the jailer [to the extent of the money the jailer would be ordered to pay back to the county as unearned money]. The jailer's theory of recovery would be that the fiscal court's alleged negligence or wanton failure to provide a county jail was the proximate cause of his not being able to earn his compensation, as reflected in the sum he is ordered to restore to the county treasury. See
Shearer v. Hall, Ky., 399 S.W.2d 701 (1966). The rule on this is stated in
Upchurch v. Clinton County, Ky., 330 S.W.2d 428 (1959) 431:
"The rule seems to be well-established that a public officer who knowingly or negligently fails or refuses to execute a ministerial act, which the law positively charges him to carry out, may be compelled to answer in damages to any person to whom the performance was owing to the extent of the injury proximately caused by the nonperformance. See Meehem, Public Officers, sec. 644, p. 445; and 43 Am.Jur., Public Officers, sec. 280, p. 93."
Also see 63 Am.Jur.2d, Public Officers and Employees, § 292, p. 803.