Request By:
Mr. William D. Stephens
Supervisor
County Fee Systems
Department of Finance
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Asst. Deputy Attorney General
You present two questions relating to accumulated leave and overtime extended to deputies of the county clerk, jailer and sheriff in counties with a population of 75,000 or more.
Question 1:
"If an employee is terminated from the employment of a County Court Clerk, Jailer or Sheriff in a county with a population of over 75,000, may the Department of Finance legally pay that individual for accumulated leave time pursuant to KRS 64.345 or any other related statute?"
Pursuant to § 106 of the Kentucky Constitution, in those counties of 75,000 or more, the clerks of the respective courts, the sheriffs and jailers are required to be paid salaries out of the state treasury. Such salaries and other necessary expenses cannot exceed 75% of the fees collected by those officers and paid into the state treasury.
The constitutional section mandates that all fees of those officers listed therein in counties of 75,000 or more must be turned into the state treasury. The salaries for those officers and their staff plus other necessary office expenses must be paid out of the "75% account," which is an account made up of 75% of the fees of the particular officer named above.
We can find no statute providing accumulated leave for such employees. However, pursuant to KRS 67A.060, 67.080 and 67.083, the Urban County Council, and the Fiscal Courts in other counties coming under the application of § 106 of the Constitution and KRS 64.345, may enact reasonable ordinances providing for leave time, i.e., for accumulated leave payment upon leaving the local service and taking leave with pay while still in local service.
Assuming the enactment of such ordinances, the leave may be paid out of the "75% account" of the affected office. If the annual order of necessary office expenses (budget) fixed by the Circuit Court in Jefferson and Fayette Counties, and fixed by Fiscal Court in other counties, does not spell out the leave payments, then an amended order would be necessary to support such payments out of the "75% account, provided that there is in existence a county ordinance authorizing such leave payments. See KRS 64.345(2). If this leave payment would cause a deficit in any month, then under KRS 64.345(4) the deficit could be made up in any succeeding month. If at the end of the term of the affected officer there is a remaining deficit, it would have to be made up by the Urban County Council or Fiscal Court, as the case may be. See KRS 64.355, stating that such officer fees are property of the county.
Question 2:
"Is it within the provisions of KRS 64.345 for the Department of Finance to pay overtime to employees of the County Clerk, Jailer or Sheriff in a county with a population of over 75,000 without specific authorization from the fiscal court or Chief Circuit Judge as the case may be?"
KRS 337.285 mandates the payment of overtime (time and a half) where the employee works longer than a 40-hour week. This applies to local government employees, i.e., the employees here in question. The overtime payment must come from the same source that the ordinary salary comes from. Here the money would ordinarily come from the "75% account" under a properly designated budget order or amended order, as mentioned above. Any fiscal deficit caused by this at the end of the term of the officer affected would have to be made up by the Urban County Council or Fiscal Court, as the case may be. The budget of the affected offices must meet the requirements of KRS 337.285. See Snyder v. City of Owensboro, Ky., 555 S.W.2d 246 (1977).
The authority for overtime is KRS 337.285. It behooves the Circuit Court (in Jefferson and Fayette Counties) and Fiscal Court in the other counties coming under KRS 64.345 to observe the mandate of overtime payments where overtime work is involved.