Request By:
Honorable David L. Armstrong
Commonwealth Attorney
30th Judicial District of Ky.
Jefferson Hall of Justice
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of February 27 in which you request an opinion on behalf of the Grand Jury regarding the legality of certain local officers' pay increments. You make specific reference to compensation increases for the Board of Aldermen and the City Comptroller whose salary was increased pursuant to an ordinance adopted in 1979. The Board members' salary was increased from $8,798 to $12,417 and the Comptroller was increased from $26,004 to $29,848. The Mayor's salary was increased from $29,484 to $31,699 during the passage of the city budget and is not covered by the referred to ordinance. Your request also includes increases in the salary of the County Judge/Executive and County Commissioners, but you do not indicate the amounts.
Your question concerning salary increases involves not only the amount but also the fact that the change was made during the officers' term.
We will first address your question relating to municipal offices. In OAG 68-572, addressed to the Comptroller of the city of Louisville, this office took the position that under the local Home Rule Act, namely KRS 83.011 and 83.012, the compensation change for elected municipal constitutional officers came under the rubber dollar theory and such officers were entitled to salary increments during their term based on the cost of living index as expressed in the case of
Matthews v. Allen, Ky., 360 S.W.2d 135 (1962), and
Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965). Likewise, KRS 64.580, requiring the compensation to be fixed not later than the first Monday in May of the year in which the officer is elected, would be treated in the same manner as Sections 161 and 235 were treated in Hesch. This opinion still expresses the position of this office though as pointed out in our opinion [still the case] there has been no court decision involving the Home Rule statute. As you know, the 1954 Home Rule Act relating to cities of the first class and cited above was repealed in 1972, however, in its place the legislature enacted a more comprehensive Home Rule law, the pertinent sections of which are KRS 83.410 and 83.520. Thus, the only change in the '68 opinion would be the substitution of the present Home Rule statutes which would not otherwise affect the opinion. We will not reiterate the detailed basis for the conclusion reached in OAG 68-572 since the enclosed opinion is self-explanatory.
Since the City Comptroller is neither a constitutional officer nor an elected official, there is no restriction under § 246 of the Constitution or KRS 64.580 with respect to the amount of compensation he may receive and when it may be received. In other words, his compensation can be changed at will.
Concerning the formula for computing the change in compensation for local constitutional officers, such as members of the Board of Aldermen [but not including the Mayor], the Consumer Price Index formula set forth in your attached memorandum dated November 14, 1979 appears to be in error. According to the State Department of Finance's computations as of February 9, 1979, the Consumer Price Index formula covering the year 1979 and approved by this office is as follows:
284.2 / 100 = X / 7200 = 100X = 7200 X 284.2; 100X = 2046240.0; X = 20,462.40
Based on the above formula, the salary increase given the Board of Aldermen for 1979 is of course well within the permitted range. The salary for the Mayor would be computed on the basis of $12,000 [Const. 264] and would establish a maximum of $34,104 also well within the increase given.
For your information we are also enclosing a copy of OAG 80-74 approving the Consumer Price Index formula for the year 1980 established by the Department of Finance for local officers.
Of course, salary increases for county officers also come under the rubber dollar theory as expressed in the referred to cases and more specifically by KRS 64.527 which is self-explanatory. We are enclosing a copy of OAG 79-189 covering the maximum compensation for Justices of the Peace and County Commissioners for the year 1979, which would be $20,462.40. Naturally, the maximum for the County Judge/Executive would be the same.
Under the circumstances, we are of the opinion that the salary increases authorized for the city officers mentioned herein for 1979 are valid. Also, assuming that the compensation increases given the county officers mentioned do not exceed the established maximum, such would be valid.