Request By:
Mr. Willis Walker
Magistrate
Route #1 - Lincoln Park Road
Springfield, Kentucky 40069
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In 1977 the Washington Fiscal Court fixed the salary of the county attorney at $150 per month, commencing January 1, 1978. After he took office, January, 1978, the fiscal court entered an order raising his salary to $600 per month. Thus his annual salary was increased from $1800 per year to $7200 per year.
You ask whether the last order was legal. The answer is "yes".
The county attorney works in a dual role. He is a prosecutor in the district court. He is an advisor in civil matters for the county under KRS 69.210.
The order in 1978 increasing his annual compensation for his civil duties for the county from $1800 to $7200 per year was legal and constitutional, since there was no prohibited change in his compensation, as is prohibited by Section 161 of the Kentucky Constitution. His compensation was merely "adjusted" to reflect the change in purchasing power of the 1949 dollar under the Consumer Price Index formula laid out in Matthews v. Allen, Ky., 360 S.W.2d 135 (1962), in the court's construction of Section 246 of the Kentucky Constitution. The court wrote this in Matthews v. Allen at page 139:
"The net result of our consideration is that the salary provisions of Section 246 of the Constitution may be interpreted and periodically applied to all constitutional officers in terms which will equate current salaries with the purchasing power of the dollar in 1949 when Section 246 was adopted."
In Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965) 363, the court, in reiterating the principle of the "rubber dollar" , said 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. "
In Carey v. Washington Cyt. Fiscal Court, Ky., App., 575 S.W.2d 161 (1978), the court had before it KRS 64.185, which provides a minimum compensation scale for coroners. The statute does not mention the rubber dollar adjustment principle. The court held the coroner's salary could not be changed during term since the legislature must act affirmatively in order to put the rubber dollar doctrine into application. See also Meade County v. Neafus, Ky., 395 S.W.2d 573 (1965). The litigation in Carey was begun in January, 1975. The interesting note is that in the regular session of 1976 [H.B. 423, ch. 283, 1976 Acts], KRS 64.527 (the rubber dollar statute) was amended to include coroners. But that came a little late for the suit in question.
Under these rubber dollar cases, and where the compensation of the constitutional officer has not attained the rubber dollar maximum for the particular year, the fiscal court may implement the rubber dollar statute under which the county attorney is placed, i.e., KRS 15.765(3), at any time during his term. See Dennis v. Rich, Ky., 434 S.W.2d 632 (1968). Under Dennis v. Rich the salary fixing power of the fiscal court is not exhausted so long as the officer's compensation has not attained the maximum rubber dollar amount.
The maximum rubber dollar amount payable to a county attorney in 1978 was $31,272.
The prosecutorial division of this office informs us that the Washington County Attorney was paid by the state, for his prosecutorial work, the total sum of $8,615.00 in 1978. Thus $8,615 plus $7,200 (assuming he was paid by the fiscal court $600 per month for 12 months) amounts to a total of $15,815 paid to him in 1978. The maximum rubber dollar amount for 1978 was $31,272. His total pay was approximately one-half of what he could have been paid.
In summary, the compensation paid by fiscal court to the county attorney in 1978 was valid and constitutional.
The maximum rubber dollar amount payable in 1978, $31,272, is an "adjustment" of the original $12,000 monetary amount in Section 246, relating to constitutional officers having duties coextensive with the state. See KRS 15.765(3), 15.730, 15.735; and Commonwealth Ex Rel. Hancock v. Davis, Ky., 521 S.W.2d 823 (1975) 826.