Request By:
Honorable Frank A. Wichmann, II
City Attorney
500 First National Bank Building
Sixth and Madison Avenue
Covington, Kentucky 41011
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
You state that the Department of Labor has determined that a police officer's 15% incentive pay from the Law Enforcement Foundation Fund is to be included in the hourly wage rate at which he is employed in the computation of overtime pay, pursuant to KRS 337.285. You ask whether the City is entitled to recover the 15% of that overtime pay from the Law Enforcement Foundation Program Fund pursuant to KRS 15.460(1) which provides:
"An eligible local unit of government shall be entitled to receive fifteen percent of each qualified police officer's annual salary from the law enforcement foundation program fund, to be paid to each officer in addition to his regular salary. "
You state that the statute differentiates between the officer's "annual" salary and his "regular" salary, and you reason that since the incentive pay is based upon his "annual" salary rather than his "regular" salary, it would appear that the City is entitled to recover 15% of both the police officer's regular and overtime pay.
KRS 15.470 provides in part:
"Law enforcement foundation program funds made available to local units shall be received, held and expended in accordance with the provisions of KRS 15.410 to 15.510, including the rules and regulations issued by the department of justice, . . ."
Accordingly, the Department of Justice has promulgated several regulations dealing with the Law Enforcement Program Fund. For example, 503 KAR 5:010, Section 1 dealing with definitions, in subsection (10) defines "base salary" as:
". . . the minimum annual salary, including longevity, paid to a police officer for a standard work year by the local unit, but shall not include any incentive monies paid by the fund, expenses for uniforms or equipment paid by a police officer as a condition of employment which may reduce the officer's salary, or any other remuneration directly related to employment by the local unit. Base salary does not include any compensation for time worked in excess of forty (40) hours per week."
Further, Regulation 503 KAR 5:050 in Section 3 provides as follows:
"Upon acceptance for participation in the fund, the local unit shall be eligible to receive fifteen (15) percent of each qualified police officer's salary from the fund to be paid to each officer in addition to his base salary. . . ."
Therefore, by Department of Justice Regulations, the base salary does not include overtime pay, and the 15% incentive funds reimbursed to a department would not include 15% of overtime pay.