Request By:
Mr. Charles I. Horton
Jefferson County Commissioner
206 Court House
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of October 15 in which you raise the following questions:
"First, does the promise, if elected, made by candidate for the office of Jefferson County Fiscal Court Commissioner to reduce his salary by the sum of $3,000.00, a violation of the Corrupt Practices Act of Kentucky, so as to provide a basis for a lawsuit to remove him from office?
"Secondly, does a subsequent attempt by the candidate to withdraw these remarks by public statement alter or affect any violation of the Act?"
Our response to your initial question would be in the affirmative. The question raised involves a violation of the Corrupt Practices Act, particularly KRS 121.055, which reads as follows:
"No candidate for nomination or election to any state, county, city or district office shall expend, pay, promise, loan or become pecuniarily liable in any way for money or other thing of value, either directly or indirectly, to any person in consideration of the vote or financial or moral support of that person. No such candidate shall promise, agree or make a contract with any person to vote for or support any particular individual, thing or measure, in consideration for the vote or the financial or moral support of that person in any election, primary or nominating convention, and no person shall demand that any candidate make such a promise, agreement or contract."
If the candidate in question was simply running on a platform of salary reduction which had not been fixed before his election or if he had run for a salary reduction for a term following his own, there would be no violation of KRS 121.055. See Owsley v. Hill, 210 Ky. 285, 275 S.W. 797 (1925). However, the salary of the county commissioners is required to be fixed not later than the first Monday in May in the year in which they are elected and cannot be changed thereafter except for the increase permitted under the rubber dollar theory expressed in a number of cases, among them being Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965). However, if the candidate's platform involves a promise to discharge the duties of office for less than the salary fixed therefor, such would be against public policy and in violation of the Corrupt Practices Act, particularly KRS 121.055 quoted above as held in the case of Kluemper v. Zimmer, 240 Ky. 225, 41 S.W.2d 1111 (1931). See also 26 Am.Jur. 2d, Elections, § 283. Also, we are enclosing a copy of OAG 71-332 covering this question in detail which is self-explanatory.
Under the circumstances, there would appear to be a violation of not only KRS 121.055 but also § 150 of the Constitution which carries as a penalty a disqualification from public office. We also might add that the issue may be raised in a contest suit following the November election pursuant to KRS 120.015 and, if successful, the election of the contestee shall be declared void and the office vacant. Brewer v. Lambert, 288 Ky. 39, 155 S.W.2d 38 (1941). The penalty for violating KRS 121.055 is a maximum fine of $5,000 and imprisoned in the county jail for not less than thirty (30) days nor more than one (1) year. KRS 121.990(8).
As to whether the candidate's withdrawal of the statement in question would negate the violation is a matter for the courts to decide as we find no case in point.