Request By:
J. William Phillips, Esq.
201 South Fifth Street
Murray, Kentucky 42071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter concerning the legality of the city's educational incentive pay plan for firemen. The city proposes to pay annual benefits to city firemen based on college credits attained by them from an accredited college or university. The greater the number of college credit hours earned, the greater the monetary benefits paid to the firemen by the city. Your specific questions are as follows:
"1. May the City of Murray, a third class city, initiate and maintain an educational incentive plan for the Murray Fire Department as outlined in the attached plan?
2. In the event your answer to the foregoing is in the negative, may the City of Murray provide a wage scale for firemen in which each classification has a salary range depending upon the post-secondary education level the employee within that classification has attained (using education level as a basis for qualifications) .
3. In the event your answer to question 1 is in the negative, would an amendment to the plan limiting benefits to Fire Science or directly related college courses cure the legal objections to the Educational Incentive Plan."
In connection with fire departments in cities of the third class, KRS 85.190 provides in part that the common council may, by ordinance, provide for the organization, establishment and maintenance of fire companies. KRS 95.430 states in part that the legislative body may ordain and enforce rules for the government of the fire department, prescribe the qualifications and duties of the members of the department and grade the officers of each department. The legislative body shall by ordinance fix the salaries of the members of the fire department. KRS 95.440 provides that each member of the fire department, in addition to the qualifications prescribed by statute, shall have such other qualifications as may be prescribed.
The Kentucky General Assembly, in KRS 15.410 to 15.510 (the Law Enforcement Foundation Program Fund), has adopted provisions whereby police officers may receive fifteen percent of their annual salary from the foundation's program fund, to be paid in addition to regular salaries, if the police officers and their cities qualify for participation in that particular program. The program in part involves various educational programs for police officers. However, we do not know of the existence of any such program for firemen.
Not only has the General Assembly not adopted an educational incentive pay plan for firemen, but we are unaware of any statutory authority for a city to expend municipal funds for such a program. A municipal corporation possesses only such powers as are expressly given, or necessarily implied, in statutes constitutionally enacted. If there is a fair and reasonable doubt as to the existence of the power, it should be resolved against the municipality. See
Juett v. Town of Williamstown, 248 Ky. 235, 58 S.W.2d 411 (1933).
The common council has the authority to fix the salaries of the members of the fire department. The word "salary" was defined in
Spalding v. Thornbury, 128 Ky. 533, 108 S.W. 906, 907 (1908) as a fixed annual or periodical payment for services. In
McNally v. Grauman, 255 Ky. 201, 73 S.W.2d 28, 30 (1934), "salary" was said to be the remuneration or recompense fixed by statute for the services of every character and kind performed by the official while he remains in office.
In
Kolcum v. Board of Education of Woodbridge School District, Del. Super., 335 A.2d 618, 621 (1975), the Court said:
"The cases in which an attempt has been made to define the term 'salary' have uniformly held that the term is ordinarily used in the future tense. Salary is 'a periodical allowance made as compensation to a person for his official or professional services or for his regular work.'"
In
Board of Education v. Associated Teachers, 310 N.Y.S.2d 929, 938 (1970), the Court said that the school board had no authority to make payments to teachers, either in the form of salary increases or of lump-sum reimbursement, for credit hours incurred in the taking and completion of graduate courses, where such courses were not required of school teachers. The taking of graduate courses is not "services rendered" to the school district unless some term or condition of employment requires the teacher to take such courses as part of his overall services rendered to the school district.
In OAG 73-436, copy enclosed, we concluded that a so-called incentive bonus, authorizing an incentive bonus for employes who work a full year without a vacation, would be illegal. While extra pay may be allowed in some cases for the performance of additional services, generally, where an officer or employe performs duties imposed by law he is entitled to the compensation fixed by law and no other. Extra compensation is not permitted for services performed in the line of his official duty. See McQuillin Mun. Corp. (3rd Ed.), Vol. 4, § 12.193 and § 12.193a where the author states that work outside of office hours ordinarily will not justify extra pay where the salary is definitely prescribed by law.
Furthermore, Section three of the Kentucky Constitution provides that no grant of exclusive, separate, public emoluments shall be made to any man or set of men except in consideration of public services. Section 171 of the Kentucky Constitution prohibits the expenditure of public funds for private purposes.
Finally, in OAG 75-43, copy enclosed, we concluded that the sheriff's office could not make tuition payments to the sheriff's employes who were taking college courses to improve their job-related capabilities.
Thus, in conclusion, it is our opinion that the city's proposed educational incentive pay plan for its firemen is illegal in that there is no statutory authorization for the program. In addition, payments for taking college courses do not come within the definition of "salary" for municipal firemen. Since such proposed payments are not for services rendered to the city those payments would be in violation of Sections three and 171 of the Kentucky Constitution. We see no objections to a proposal whereby the city in prescribing the qualifications for the various grades of firemen requires reasonable educational levels of attainment among the necessary qualifications.