Request By:
Mr. Vic Hellard, Jr.
Director
Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In OAG 77-611, written to you, we dealt with interpretational problems concerning the Public Officials Compensation Commission as established in KRS 64.741 through 64.745. Specifically we concluded that the term "public officials" appearing in KRS 64.744 [scope of studies of the Commission] means those persons in state or local government who hold a public office as defined in
Howard v. Saylor, Ky., 379 S.W.2d 475 (1964) 476, 477, setting forth five requisite elements of a public office.
The commission feels that the application of the five criteria would lead it to include cabinet officers and commissioners appointed by the Governor as public officials. Yet, you say, KRS 64.640 makes the Department of Personnel responsible for promulgating the levels of compensation for such officials, subject to approval by the Governor. Thus the commission believes the use of the five criteria would lead to a conflict with KRS 64.640.
The role of the Public Officials Compensation Commission is to make studies of compensation of public officers in order to make specific recommendations to the General Assembly. KRS 64.744. There is nothing binding or controlling about their work. And there is nothing to prevent [from a purely legal standpoint] the General Assembly from acting on such recommendations and passing a bill accordingly.
Under KRS 64.640, the Governor sets the compensation for cabinet officers and commissioners. From a pragmatic and legal viewpoint, the Governor sets the compensation for state officers and employees generally, since the schedules of compensation prepared by the Department of Personnel must be approved by the Governor to be effective.
We conclude that the inclusion of cabinet officers and commissioners appointed by the Governor as being within the scope of the P.O.C. Commission's role of recommendation to the legislature is not in conflict with KRS 64.640. The commission can merely recommend, but it is up to the legislature to pass a bill. The legislature in turn can amend KRS 64.640 if it chooses. But, considering the realities of Kentucky government and the way it works, the amending of KRS 64.640 is a matter for the legislature to decide, after considering the Governor's recommendations. If the commission, upon a study being made, believes the Governor's criteria for setting cabinet officers' and commissioners' salaries is adequate, they would be under no legal compulsion to recommend any change in the Governor's procedure under KRS 64.640(2). There is a good argument for permitting the Governor to set salaries for his cabinet officers and commissioners. He is responsible for their work and level of performance; and he needs to attract the best men available for those jobs. However, this is purely a matter of legislative policy, about which, in the absence of constitutional impingement, the courts have no legitimate concern.