Request By:
Mr. Harold Stumbo
Floyd County Attorney
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Recently the fiscal court raised the salaries of the magistrates to $1,000 per month (for their work on fiscal court) plus a $200 per month expense account, to take effect as of January 1, 1977. You ask if this is legal.
The justice of the peace has been included in the annual rubber dollar adjustment of compensation. KRS 64.527. The maximum compensation under that statute would be $17,576.64 for the calendar year of 1977. KRS 64.530(6) contains a statutory maximum of $260 per month for magistrates serving on fiscal courts. However, KRS 64.527 would probably be held by the courts to have amended KRS 64.530(6) to that extent, since the latter statute is wholly inconsistent with KRS 64.527. The fiscal court, where the maximum statutory salary is not attained, can always adjust, within the statutory maximum, during the term the compensation of the magistrates. See Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965) and Dennis v. Rich, Ky., 434 S.W.2d 632 (1968).
Our answer is that $12,000 per year for the magistrates is excessive and illegal as being an unreasonable and arbitrary setting of compensation, when one considers the sporadic holding of meetings of the fiscal court (in many counties only two meetings are held) and the sporadic performance of county duties generally by the magistrates. We do not believe that $12,000 per year for part time work will meet the constitutional test of reasonableness in court in your situation. See § 2, Kentucky Constitution and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963). We believe that if the fiscal court authorizes in excess of $5,000 per year for each magistrate serving on fiscal court in rural Kentucky, such action will not be favorably considered by the courts.
The expense allowance of $200 per month is illegal, since KRS 64.258 authorizes an expense allowance per each justice of the peace, not to exceed $100 per month.
Your next question concerns what action you should take if the magistrates persist in authorizing and accepting such illegal compensation and expense allowances. KRS 69.210(2) provides that the county attorney shall oppose all unjust or illegally presented claims. This includes an appropriate suit filed in circuit court. We see no ethical question here. It is strictly a matter of the county attorney having to perform, though it may be unpleasant, a statutory duty. Perhaps if you explain the amount of compensation and expense allowance that would be considered legal, as we have indicated above, a lawsuit might not be necessary. In a lawsuit you would be merely representing the county and seeking a repayment from the magistrates into the county treasury of that portion of compensation and expense allowance deemed to be illegal.