Request By:
Mr. Jerry Abramson
General Counsel
Office of the Governor
Capitol Building
Frankfort, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The State Auditor has written the Governor's Office questioning the legality of the salary to be paid Neil Welch.
You point out that prior to the decision to pay Mr. Welch a salary of $64,000 annually, the entire matter was evaluated by your office in consultation with the Department of Personnel and our office. You concluded that the salary was statutorily permissible and so advised the Governor. We agree.
You state that Mr. Welch will be appointed to the Governor's staff pursuant to KRS 11.040, and his salary will be paid pursuant to KRS 11.110. Additionally, he will be appointed as Secretary of Justice pursuant to KRS 12.040 and 15A.010. His total compensation will reflect his duties not only as Secretary of Justice, but as a Special Assistant to the Governor with duties beyond those historically assumed by the Justice Secretary.
KRS 11.040 provides that the Governor may appoint such persons as he deems necessary for the proper operation of his office to perform such duties as the Governor may require of them. See KRS 18.140(1)(d) and (e), excepting from the state's classified service officers on the governor's staff and cabinet secretaries. KRS 64.640 places restrictions on compensation of state officers. However, KRS 11.040 expressly provides that "none of the provisions of KRS 64.640 shall be applicable to persons appointed under this section." (Emphasis added). Therefore there is no constitutional nor statutory limitation on the salary of Mr. Welch under an appointment made pursuant to KRS 11.040. KRS 11.110 states that "The governor shall fix the compensation of persons employed by him under the provisions of KRS 11.040 and 11.070." (Emphasis added). There is no mention of a salary limit. It would merely have to be reasonable in the context of his assigned duties under KRS 11.040. See Sec. 2, Kentucky Constitution; and
Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963). Mr. Welch, as an appointee under KRS 11.040, would not be a constitutional officer. Therefore, Sec. 246 of the Constitution and the rubber dollar principle would not apply to his compensation. See
Matthews v. Allen, Ky., 360 S.W.2d 135 (1962). The word "officers" appearing in Sections 161, 235 [prohibiting change in compensation after election or appointment] , and 246 [establishing compensation maximums] was interpreted in
Board of Education of Graves County v. DeWeese, Ky., 343 S.W.2d 598 (1961), as being restricted to officers directly named and designated in the text of the Constitution.
Mr. Welch will be appointed also as Secretary of Justice pursuant to KRS 12.040 and 15A.010. See also KRS 12.020 (II, (4)). Under KRS 64.640(2), the Governor may establish compensation for his cabinet officers at any reasonable amount, not to exceed the amount provided for the Governor in KRS 64.480(1).
It must be borne in mind that the two positions are mutually exclusive, and that KRS 64.640(2) imposes no limitation on Mr. Welch's salary as a Special Assistant under KRS 11.040. Here the Governor contemplates appointing Mr. Welch in two capacities: (1) as the Secretary of Justice, with its attendant statutory duties, and (2) as Special Assistant to the Governor, with specifically assigned duties under KRS 11.040, separate and distinct from duties of Secretary of Justice.
Neither of the two positions is restricted by Section 246 of the Constitution, since neither position is a constitutional office. The statutory restriction relates only to the Secretary of Justice position, as mentioned above.
Dr. Graham has asserted that Mr. Welch will receive two salaries for the same duties, in violation of Sec. 3 of the Kentucky Constitution. However, no facts are cited which would support a conclusion that the same duties are involved in the two positions.
In fact, under an appointment by the Governor pursuant to KRS 11.040, the courts would presume, in the absence of well documented evidence to the contrary, that the Governor's appointment under that statute was conducted in good faith, looking toward the appointee's actual service in a special capacity to the Governor's office, and beyond the duties as Justice Secretary, as he may deem necessary for the proper operation of that office. There is nothing in KRS 11.040 which suggests a duplication of function as relates to such an appointee and a cabinet officer. Under the legislative purpose of the statute, in authorizing the Chief Executive of this Commonwealth to make such appointments, based upon problems and work demands peculiar to the Governor's office and the Governor's knowledge of the demands of that office, it is our view that the courts would not reverse the Governor's appointment action in this regard except under circumstances clearly indicating an abuse of the statute.
It is true that Sections 3 and 171 of the Kentucky Constitution require that payments out of the state treasury will be based upon services rendered, a quid pro quo. Legally, we can rightly assume that the Governor will act in good faith, and that the Secretary will be assigned a definite role with a definite duty [under KRS 11.040] which will be entirely separate from and in addition to his statutory duties as Secretary of Justice.
Further, as you suggest, there is nothing in Section 165 of the Kentucky Constitution nor KRS 61.080 which prohibits a person from holding two state offices at the same time. There would be no common law or practical incompatibility where Mr. Welch can perform both jobs with care and ability and with impartiality and honesty.
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917) 126.
In conclusion, it is our opinion that Mr. Welch can be legally paid the total annual sum of $64,000 under the above analysis and assumptions.