Request By:
Mr. Terry L. Stephens
Russell County Clerk
Courthouse
Jamestown, Kentucky 42629
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have three full time deputies. The authorized salaries, while meeting the state's minimum wage, only allow for payment of a 40 hour week, regardless of any overtime worked. They work extra hours [in excess of 40 hours] during the motor vehicle licensing season.
You recently requested an increase in the salaries of your deputies, but the request fell on stony ground. You have sufficient excess fees to fund any reasonable increase in their salaries. Your question is: What can be done to improve your deputy salary situation?
First, it is mandatory that fiscal court observe Kentucky's minimum wage and hour law. See KRS 337.275 and 337.285. These people must be paid time and a half for any time worked in excess of 40 hours per week. See KRS 337.385 as to the employer's liability for unpaid wages and liquidated damages. Here the employer would be the county, through fiscal court, since it has salary fixation responsibility under KRS 64.530.
Next, under KRS 64.530(4), the county clerk may submit in writing a request to fiscal court asking that deputy salaries be increased. The statute says deputy salaries "may be reviewed and adjusted" each year of the term of the constitutional officer. The language used [may be adjusted] , indicates the adjustment is permissive only. In other words, the adjustment is addressed to the sound discretion of fiscal court. KRS 446.010(20) ["may" is permissive] . Any increase in such salaries must be based upon sound considerations of practical justification and of budgetary practice as required by KRS Chapter 68 [where salaries are paid directly from the county treasury]. Thus the money for a raise must be available in the budget or in the form of fees of the clerk's office. However, the discretion of the fiscal court in granting or not granting a raise of deputy salaries cannot be exercised in an arbitrary manner. See § 2, Kentucky Constitution, and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963). In defining the term "arbitrary", the court has written in effect that the term would mean that the governmental action was not right and equitable under the circumstances, and not directed by sound reason and in the exercise of good judgment and conscience. Baisden v. Floyd County Board of Education, 270 Ky. 839, 110 S.W.2d 671 (1937) 673. In simple language if the fiscal court rejects the proposed raise, they must have a sound reason or basis for the rejection. In reviewing a proposed salary adjustment the fiscal court must search for the truth of the whole matter by inviting a free trade in ideas, i.e., testimony from any relevant source. Justice Holmes wrote that the best test of truth is the power of the thought to get itself accepted in the competition of the market [as applied to the judicial forum]. Abrams v. United States, 63 L. Ed. 1178, 1180 (1919).