Request By:
Arnold Turner, Jr., Esq.
Attorney at Law
South Lake Drive
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
You request an opinion from this office concerning marshals and deputy marshals of the 6th class City of Wheelwright, Kentucky. You specifically ask:
"Is the City of Wheelwright, Kentucky, a 6th class city, required under Kentucky law to pay minimum wage to deputy marshals and city marshals. "
You further indicate that earlier Attorney General opinions have indicated that deputy marshals can only be paid fees.
In OAG 74-841 (copy enclosed), under question No. 3 we advised that a deputy marshal can only receive fees for service of process. This requirement originates with KRS 95.800(4) which provides in part:
"He [marshal] may, with approval of the board of trustees appoint deputy marshals. The only compensation of a deputy marshal shall be fees for service of process, which shall be the same as allowed to the marshals. . . ."
While the deputy marshal can only receive fees for service of process, we have, as early as 1956 and 1958 in OAG's 38,970 and 41,163, stated that the marshal himself could be paid a salary, there being no statute which forbids the payment of a salary.
The Kentucky Minimum Wage law, in KRS Chapter 337 requires payment of minimum wages to all employees with certain exceptions. It is obvious that the deputy marshal would be an employee of the marshal. However, inasmuch as the legislature has seen fit to limit the deputy marshal to only those fees for service of process and no others, it apparently was the intent of the legislature to discourage the use of deputy marshals in the 6th class cities by limiting their compensation to a fee for service of process. KRS 95.800 was not amended or repealed in any fashion with the enactment of the Kentucky Minimum Wage law. Therefore, it appears to be the exception to the requirement of minimum wages and to require the payment of minimum wages would go in the face of that statute.
In short, a deputy marshal of a 6th class city need not be paid minimum wages but shall be paid only a fee for service of process. He may not be paid any other compensation.
The marshal, however, poses a different question. He may be paid either fees or a salary. Thus, the same limitation in relation to minimum wages is not present for the marshal that it would be for the deputy marshal.
It is not necessary to pay a marshal minimum wages if he meets the criterion of an individual employed in a bona fide, executive, administrative or supervisory capacity. . . as is set out in KRS 337.010(2)(c)(ii). To meet the criterion, he would need to meet the requirements of the Department of Labor's regulations concerning those individuals set out in 803 KAR 1:070. For example, if he were in an executive capacity, among other things, he would have to supervise two or more employees, have discretionary power of firing and hiring or recommending firing or hiring, not devote more than 20 percent of his hours doing the work of the people who he supervises and is paid a minimum of $155 per week. It is unlikely that a city marshal of a 6th class city could meet all those requirements. Therefore, he would not be exempted from the State Minimum Wage law as coming under the terms executive, administrative or supervisory. He would have to be paid the minimum wage and his salary should reflect that payment
Your second question asks how overtime hours may be restrained where the marshals and his deputies, although restricted to 8 hour shifts, 5 days a week, continue to work on their own time. This question appears to be a question of policy rather than law. You should specifically state to the marshal that he may not work over 40 hours per week except in an emergency situation in order to avoid the overtime provisions. The City's ordinance and policy should state specifically the hours that the marshal shall be on duty. However, if, in emergency situations, the marshal is called upon to work in excess of 40 hours, he will be required to be paid time and a half his regular rate of pay for each hour in which he works in excess of 40 hours per week, and in computing overtime, each week must stand alone.