Request By:
Mr. Vic Hellard, Jr.
Director
Legislative Research Commission
Capitol Building
Frankfort, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The General Assembly in 1976 enacted legislation to establish a public official compensation commission (KRS 64.741 to 64.745). The purpose of the commission is stated in KRS 64.744: "The commission shall study the retirement benefits, per diem, mileage, travel expenses and other allowances, reimbursements and emoluments of public officials, in order to make specific recommendations to the general assembly. " (Emphasis added).
The commission desires our interpretation of the phrase "public officials", as it is used in KRS 64.744, above quoted.
As you say, the term is not defined in the statute. Webster's Seventh New Collegiate Dictionary, p. 586, defines "official" as "one who holds or is invested with an office." It follows that a public official is one who holds a public or governmental office. Therefore the term "public official" and "public office" are used interchangeably. City of Louisville v. German, 286 Ky. 477, 140 S.W.2d 931 (1941) 934, 935. The appellate court has adopted the view that there are five elements in any position of public employment in order to make it a public office of a civil nature. They are listed in Howard v. Saylor, 305 Ky. 504, 204 S.W.2d 815 (1947) 817:
"'(1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional.'"
See the later case of Commonwealth v. Howard, Ky., 379 S.W.2d 475 (1964) 476, 477, reiterating the position taken in Howard v. Saylor, above.
It is thus our opinion that the phrase "public officials" means those persons in state or local government who hold a public office as defined in Howard v. Saylor, above. It does not extend to governmental employees who do not satisfy the five requisites set out in Howard v. Saylor. If the legislature had intended to enlarge the function of the commission to embrace governmental employees as well as governmental officers or officials it could have easily said so.
Next, you ask whether "salaries" should be included within the scope of the commission's activity. As you have noted, the statute does not define emoluments nor compensation in KRS 64.744. Webster, at p. 271, defines emolument as "the profit arising from office or employment usually in the from of compensation or perquisites. " "Perquisite is defined by the same authority, p. 630, as "a privilege, gain, or profit incidental to regular salary or wages." State Board of Charities and Corrections v. Hays, 190 Ky. 147, 227 S.W. 282 (1921) 287, adopts the Webster's New International Dictionary definition of emolument as "profit from office, employment, or labor; compensation; perquisites, fees or salary. "
It is our opinion that the term "emoluments of public officials" is broad enough to cover salaries of public officials or officers.