Request By:
Mr. James M. Groves
Todd Circuit Court Clerk
Courthouse
Elkton, Kentucky 42220
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question reads:
"Can my salary be lowered during my term of office, while at the same time requiring additional work, responsibility and even additional deputies?"
Section 235 of the Kentucky Constitution provides that the salary of public officers shall not be changed during the term for which they were elected. This applies, of course, to constitutional officers, that is, officers who are named specifically in the text of the Constitution. The circuit court clerk is a constitutional officer.
The key to answering your question is whether or not the decreasing of your salary during your term of office constitutes a "change" of compensation. (Emphasis added). It has been said that "Obviously the inhibitory purpose of Section 235 is directed against the making of a change that is to take effect during a term of office then curerent."
Commonwealth Ex Rel. Hancock v. Davis, Ky., 521 S.W.2d 823 (1975) 826.
Under the rubber dollar principle, the compensation of a constitutional officer can be "adjusted" in terms of the purchasing power and the consumer price index during his term. (Emphasis added). In practical terms, an adjustment upward is really an increase in compensation. However, the court in the rubber dollar cases has held specifically that such an adjustment in terms of the purchasing power of the dollar and the rising consumer price index does not constitute a change in compensation as envisioned by Section 235 of the Constitution. See
Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965).
From a residual standpoint any modification of compensation that is outside the frame of the rubber dollar principle would constitute a change in compensation, as proscribed by Section 235. Thus the duties of a constitutional officer may be increased or decreased during his term of office, but his compensation may not be changed during his term under Sections 161 and 235 of the Constitution. Section 161 of the Constitution expressly prohibits the changing of the compensation of a city or county officer during his term of office.
Wyatt v. City of Danville, 276 Ky. 629, 124 S.W.2d 1022 (1939) 1023.
In the year of 1977 you say that your salary was that of the constitutional maximum allowed for county officers that year, which was $17,577. See KRS 64.527. However, for the year 1978, you are being paid $17,000. Your salary has been decreased $677 for the entire year. During the Extraordinary Session of 1976 [Ch. 21, § 19, effective January 2, 1978] KRS 64.055 was enacted. The statute provides for the payment of the salary of circuit clerks out of the state treasury; and the salary payments are based upon the population factor of each county. Based upon the population of Todd County you are being paid for 1978 an annual salary of $17,000. That is the figure given in the statute where the population of the county is from 10,000 to 14,999.
In any event, since they are paying you for 1978 at a decreased level of income, it is our opinion that your compensation cannot be decreased during your term of office, regardless of whether you have additional work responsibilities or not. Since the rubber dollar principle is not involved, Sections 161 and 235 of the Constitution expressly prohibit such a change in compensation. They cannot pay you less than $17,577, which you received in 1977.
In a literal sense there are those who contend that an increase in compensation, as well as a decrease, constitutes a change in compensation. But the courts settled that several years ago as to an increase under the consumer price index formula. As Justice Holmes wrote in