Request By:
Mr. James H. Fallin
Hancock County Judge/Executive
Courthouse
Hawesville, Kentucky 42348
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question reads as follows:
"I respectfully request that your office render an opinion as to whether or not a fiscal court can lower the salaries of constitutional officers after the raise has been appropriated in the budget and the budget being approved as to form in the month of May."
As of the date of your letter [June 2, 1980] the fiscal court had not passed the budget. See KRS 68.260. Your office has just informed us that the ordinance relating to the budget will get its second reading on June 25, 1980.
Once the salaries are adjusted to a specific salary level by the fiscal court under the rubber dollar principle [see KRS 64.530, 64.527, Section 246,
Ky. Const., and Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965)], the salaries cannot subsequently be decreased by the fiscal court. Such a decrease would not be an implementation of the rubber dollar principle [adjusting salaries upward in terms of the rising consumer price index] . Instead of adjusting upward under rubber dollar, this would be a decrease. Sections 161 and 235 of the Kentucky Constitution prohibit a "change" in compensation of constitutional officers during their term. The rubber dollar principle declared by the courts is a doctrine of purchasing price adjustment in terms of the consumer price index; and such "adjustment" does not constitute a "change" in compensation. In Commonwealth v. Hesch, above, at page 363, the court wrote this:
"We further conclude that the salary increases here involved do not violate the purpose of the constitutional provisions prohibiting changing compensation during current terms of office, for on the theory of construction we have adopted, the salaries of the various offices are merely being kept abreast of their initial value or purchasing power."
If the fiscal court brings about a decrease in an "established salary level" for those constitutional officers, the rubber dollar principle cannot be invoked. Thus a decrease of salary would be a prohibited change in compensation. When we say an "established salary level" , we mean that the fiscal court has actually, and with finality, fixed the particular salary level. If the subject budget contains an explicit appropriation relating to the county judge/executive's salary and if such budget is finally adopted pursuant to KRS 68.260, the salary of the county judge/executive will have become "fixed". Then subsequently, if the fiscal court by legislative action decreases the previously established salary of the county judge/executive, it would be unconstitutional, as we explained above.
The court in
Sparks v. Boggs, Ky., 339 S.W.2d 480 (1960) [prior to the rubber dollar opinion in
Matthews v. Allen, Ky., 360 S.W.2d 135 (1962)], at page 483, said this about the meaning of the word "change" in Sections 161 and 235 of the Constitution, as applied to a change in salary:
"Section 161 of the Constitution of Kentucky plainly prohibited such contemplated action upon their part. The pertinent language of that section reads: 'The compensation of any city, county, town, or municipal officer shall not be changed after his election or appointment, or during his term of office; * * *.' The word 'changed' implies that the compensation of an official may not be scaled up or scaled down."
Of course the scaling up under "rubber dollar" has been upheld by the courts. But the scaling down during the term remains a prohibited change in compensation.