Request By:
Mr. George L. Atkins
Secretary
Department of Finance
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Asst. Deputy Attorney General
This is in response to your recent letter concerning the compensation of local and state-wide constitutional officers.
THE STATE'S SHARE FOR PAYING COUNTY ATTORNEYS.
The first question emerging from your letter addresses the proper computation of the state's share for paying the county attorneys for their prosecutorial work for the year 1981.
KRS 15.765(1) provides that "Each county attorney shall receive, for prosecutorial duties, an annual salary to be paid out of the state treasury which shall be the total compensation as county attorney which he received during the calendar year 1976, but which shall in no event be less than seven thousand two hundred dollars ($7200)." (Emphasis added.)
The county attorney performs two public functions. He is a prosecutor in district court. KRS 15.725(2). He is the civil attorney for the county. KRS 69.210. KRS 15.765(1) clearly recognizes the dual role, although his total compensation (from the state and county combined) is geared to the consumer price index formula (rubber dollar) . See Matthews v. Allen, Ky., 360 S.W.2d 135 (1962); and Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965).
It is our opinion that the legislature intended that, aside from the application of the maximum rubber dollar amount payable in the aggregate for both prosecutorial and civil county duties, the prosecutorial compensation be based upon the total compensation received as county attorney in 1976, subject each year to the actual yearly advancement of the Consumer Price Index. The application of that technique, however, is subject to the floor or minimum of $7200. See KRS 15.765(1); and Matthews v. Allen, above. See also Henry v. Commonwealth, 312 Ky. 491, 228 S.W.2d 32 (1950), stressing that all of the statute must be considered. Of course, the total pay from state and county cannot exceed the maximum rubber dollar amount for the year, computed on the basis of a $12,000 monetary level indexed, which is $43,429.00 for 1981, as we shall point out elsewhere in this opinion. See KRS 15.765(3).
The 1980 Budget Act [H.B. 931, 1980 Cts, Ch. 109] on page 215, under Item 22 relating to the unified prosecutorial system, sets both the total appropriations for the commonwealth's attorneys and county attorneys for the biennium. This qualifying language appears:
"Notwithstanding other statutory provisions to the contrary, the above appropriation includes a maximum 6% salary increase for elected officials and 5% for staff persons each fiscal year." (Emphasis added.)
Thus the technique of increasing the prosecutorial salary for county attorneys each year based upon the C.P.I. advancement is subject to holding the yearly increase to not exceed six percent (6%).
The restrictive language in the 1980 Budget Act (maximum 6% salary increase) poses no constitutional problem [see $51, Ky. Const., providing no law may relate to more than one subject], since the restrictive language merely explains a measuring of the salary increase in terms of available appropriation.
COMPENSATION PAID BY THE STATE TO COMMONWEALTH'S ATTORNEYS IN 1981.
Pursuant to KRS 15.755(4) and (7), the annual compensation of nine commonwealth's attorneys, who are prohibited from engaging in the private practice of law, based upon the $12,000 indexed [see § 246, Ky. Const.], for 1980 was $38,640. Thus, applying the permissible 6% salary increase, as provided in the 1980 Budget Act, the permissible annual compensation in 1981 for the nine (9) full-time commonwealth's attorneys under KRS 15.755(4) and (7) would be $40,958.40. This is true, although $12,000 indexed for 1981 amounts to $43,429.00. The point here is that these nine (9) commonwealth's attorneys are full-time prosecutors. Thus in reading all of the statute, KRS 15.755, together, it is our opinion that the legislature intended to place the full-time prosecutors under the potential maximum rubber dollar salary. See Henry v. Commonwealth, 312 Ky. 491, 228 S.W.2d 32 (1950). It makes good, practical sense.
Concerning those commonwealth's attorneys who are part-time prosecutors, and considering KRS 15.755(5), it is our opinion that their annual compensation was intended to be based upon the application of the annual C.P.I. advancement percentage to the prior year's prosecutorial salary, with the starting year base being equivalent to the total compensation received in 1976 by county attorneys. See KRS 15.755(5) and 15.765(1). In this situation the prosecutorial statutes should be read together (same subject matter) in order to arrive at an equitable interpretation of ambiguous statutes. It would not make sense for the part-time commonwealth's attorneys to receive less salary than that maximum state share received by county attorneys as prosecutors. As was said in Goodpaster v. U.S. Mortgage Bond Co., 174 Ky. 284, 192 S.W. 35 (1917), a statute should be so construed as to make its application equitable and just, instead of inequitable and unjust.
Thus all of the part-time commonwealth's attorneys are to be paid a salary equal to the maximum state share for county attorneys. To be concrete, the maximum state share for county attorneys in 1980 was $23,184.00. Under the 6% increase rule, the annual salary to be paid part-time commonwealth's attorneys for 1981 amounts to $24,575.04.
THE INDEXING OF THE $12,000 MONETARY LEVEL FOR 1981.
Under the formula set out in Matthews v. Allen, above, the maximum annual compensation payable in 1981 to state-wide officers in general [$12,000 indexed] would be this:
361.905/100 (current C.P.I., 1949 base year) = X/$12,000
100X = $12,000 x 361.905
100X = 4342860
X = $43,428.60 or $43,429.00 rounded off.
THE INDEXING OF THE $7200 MONETARY LEVEL FOR 1981.
The $7200 monetary level of § 246 of the Constitution applies to the county judges executive, county clerks, sheriffs, justices of the peace, county commissioners, coroners and jailers, pursuant to KRS 64.527. The payment of the maximum rubber dollar amount is not generally automatic under that statute. The implementation of the rubber dollar principle will depend upon the fiscal court in setting salaries payable out of the county treasury and the operation of the fee system for fee officers.
Under the C.P.I. formula, the maximum annual compensation payable for local constitutional officers in 1981 would be this:
361.905/100 (current C.P.I., 1949 base year) = X/$7200
100X = $7200 x 361.905
100X = 2605716
X = $26,057.16 or $26,058.00 rounded off.