Request By:
Mr. James A. Knight
Johnson County Attorney
Courthouse
Paintsville, Kentucky 41240
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an opinion as to the amount of salary a commissioner in Kentucky serving on fiscal court may make.
In KRS 64.527 both the justices of the peace and commissioners serving on fiscal courts are established in the rubber dollar compensation statute. The statute is in implementation of the rubber dollar formula cases of Matthews v. Allen, Ky., 360 S.W.2d 135 (1962); and Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965) 363. The statute, KRS 64.527, merely keeps the justices of the peace and county commissioners abreast of their initial value or purchasing power, based upon the 1949 dollar, when § 246 of the Kentucky Constitution was amended.
In simple terms, KRS 64.527 means that a justice of the peace on fiscal court may earn up to the maximum compensation, as computed yearly under the consumer price index formula, provided the fiscal court authorizes it in connection with voting an annual salary payable out of the county treasury. An increase under the rubber dollar principle each year does not contravene §§ 161 and 235 of the Kentucky Constitution, since such increases are purchasing power adjustments. Under the rubber dollar cases the original monetary maximum of $7200 of local officials must be adjusted yearly in terms of the advancing consumer price index computation (1949 = 100).
It is our opinion that, under the express inclusion of county commissioners in KRS 64.527, the county commissioners serving on fiscal courts may also earn up to the maximum rubber dollar each year. The rubber dollar maximum for 1979 under KRS 64.527 is $20,462.40 per annum.
KRS 64.530(6) provides:
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"(6) Justices of the peace serving on a fiscal court in any county, and county commissioners serving on a fiscal court in any county other than one (1) containing a city of the first, second, third, or fourth class, shall be paid for their services, out of the county treasury, not to exceed the maximum compensation allowable under KRS 64.527. The fiscal court shall fix the amount to be received within the above limit, but no change of compensation shall be effective as to any member of a fiscal court during his term of office. The compensation of county commissioners serving on fiscal courts in counties containing a city of the first class shall not exceed nine thousand six hundred dollars ($9,600) per year, in counties containing cities of the second class it shall not exceed nine thousand dollars ($9,000) per year and in counties containing cities of the third or fourth class it shall not exceed twenty percent (20%) more than the annual compensation paid in the county for the calendar year immediately preceding 1974, and all of said annual salaries shall be payable monthly. Justices of the peace and county commissioners shall not receive any compensation for their services on the fiscal court, other than as provided by this section; nor shall they receive any compensation for serving on committees of the fiscal court. The fiscal court shall fix the amount to be received within the above limit, but no change of compensation except as provided in KRS 64.285 shall be effective as to any member of a fiscal court during his term of office. "
It can be seen from the last cited statute that magistrates serving on a fiscal court in any county, and county commissioners serving on a fiscal court "in any county other than one containing a city of the first, second, third or fourth class" , are subject only to the maximum rubber dollar compensation provided in KRS 64.527. To put it another way, magistrates in any county and commissioners in counties containing a city of the fifth or sixth class only, are subject only to the rubber dollar maximum of KRS 64.527. However, in the same breath, it (KRS 64.530(6)) purports to establish for commissioners a statutory maximum in those counties containing certain class cities as follows: 1st class2nd class$9600 per annum$9,000 per annum
In counties containing a third or fourth class city only, the compensation of the commissioners shall not exceed twenty percent (20%) more than the annual compensation paid in the county for the calendar year immediately preceding 1974.
In view of the broadly stated general principle of KRS 64.527, the provisions of KRS 64.530(6) imposing special monetary restrictions upon commissioners' salaries in certain counties is wholly irreconcilable. We believe that the latter section appearing in the 1978 Acts amending KRS 64.527 [Ch. 384, § 582] governs over § 131 of Chapter 384, amending KRS 64.530. It is our opinion that KRS 64.530(6), as to its deviational provisions [flat statutory limits on commissioners' salaries as contrasted with the statutory rubber dollar limit], must give way to the general statutory scheme of KRS 64.527, which is the pure rubber dollar statute. Department of Revenue v. Miller, 303 Ky. 822, 199 S.W.2d 622 (1947).
Moreover, the imposing of special monetary statutory maximums upon commissioners' salaries in the teeth of the rubber dollar principle and statute [KRS 64.527] would probably be construed by the courts to be arbitrary and special legislation. See §§ 2 and 59, Kentucky Constitution. There is no logical basis for making the distinction found in KRS 64.530(6). There is no distinctive or natural reason supporting such a classification. Note that KRS 67.070(1) provides in part that except as provided by law, all laws governing fiscal courts using the justice of the peace system shall be applicable to fiscal courts using the commissioner system. However, this statute can in no way authorize the General Assembly to establish differences as to the two systems, which differences are not based upon reason, and which would in effect constitute special legislation. See § 59, Kentucky Constitution. In Felts v. Linton, 217 Ky. 365, 289 S.W. 312 (1926), the old Court of Appeals rejected the county budget act exempting counties having the commissioner form of government as being special legislation under § 59, Constitution, and thus held it unconstitutional.
KRS 64.527, of course, puts justices of the peace and county commissioners on the same salary system, thus satisfying the constitution. KRS 64.530(6), however, imposes salary restrictions upon commissioners which are unrelated to and in conflict with the rubber dollar concept. Indeed, commissioners in the more heavily populated portions of the state would be penalized if KRS 64.530(6) were strictly followed.
In Felts v. Linton, above, Judge Dietzman in a scholarly fashon pointed out the underlying reason for holding the county budget act unconstitutional at pages 313-314:
"No good reason is therefore seen why the fiscal affairs of counties under the commission form of government should be managed differently from those under the fiscal court form of government. The governing bodies of both forms discharge identical duties; they may be the same in number, and about the only difference between the two is in the manner of their election. The counties are not classified under the act before us on any basis of population or difference in character, but only on whether they have the commission form of government or fiscal court form of government. Such form of government depends on no distinction between the counties, but solely on the result of the vote of the citizens for the county in question. It is apparent then that the classification made by the budget act here in question is not based on any distinctive or natural reasons inducing and supporting such classification, and that therefore the Legislature was without power under subsection 29 of section 59 of the Constitution to create this budget system applicable only in the counties having the fiscal court form of government in the present state of the law providing for both kinds of county government."
We are inclined to believe that the courts, if presented with the problem of KRS 64.530(6), would hold that subsection unconstitutional, since no reasonable or tangible basis for that distinction exists. See also Board of Education v. Board of Education, 264 Ky. 245, 94 S.W.2d 687 (1936) 689, on the point of the necessity for reasonable classification. Thus the general law of KRS 64.527 must apply here.
While the magistrates and commissioners serving on fiscal courts may earn up to the maximum rubber dollar amount under KRS 64.527, the caution we issued in OAG 77-774, copy enclosed, for magistrates would apply to commissioners. There we pointed out that the salary voted must be supported by a work schedule which would justify the compensation paid. Thus where the magistrate or commissioner works on county business for at least one-half of a five-day work week, for example, he could justify a salary of $10,231 for the year 1979. If the commissioner puts in a five day work week on county business, he could justify a salary out of the county treasury of the maximum rubber dollar compensation in 1979, i.e., $20,462.40 per annum.