Request By:
Honorable Gene Huff
State Senator
Capitol Building
Frankfork, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The outgoing fiscal court recently attempted to raise all county salaries to what you have characterized as a very exorbitant level. Some of the salary raises were as follows: "County Judge/Executive$26,058.00Administrative Assistant15,000.00Secretary No. 110,000.00County Clerk26,058.00Deputy Chief14,400.00Deputy No. 112,000.00Deputy No. 212,000.00Sheriff26,058.00Deputy Chief14,400.00Deputy Chief No. 1-512,000.00Jailer26,058.00Deputy Chief14,400.00Deputy Matron12,000.00County Treasurer14,400.00Magistrates (4)26,058.00Coroner26,058.00
Question No. 1 reads:
"(1) What would be the correct (legal) way to resolve this action?"
The local constitutional officers' compensation was set at the maximum permissible under the rubber dollar principle. See KRS 64.527 and Commonwealth v. Mesch, Ky., 395 S.W.2d 362 (1965). There is no problem with salary increases as relates to § 246 of the constitution (compensation levels and the rabber dollar principle). The rubber dollar adjustment and the rubber dollar principle). The rubber dollar adjustment principle involves an "adjustment" of compensation, not a "change" thereof, as prohibited by KRS 64.530 and §§ 161 and 235 of the Kentucky Constitution.
We see nothing illegal about putting the county judge/executive, county clerk, sheriff, and jailer on the rubber dollar maximum, provided that the compensation can be fully funded out of the county treasury as relates to the county judge/executive, and out of the fees of office or county treasury or a combination thereof as relates to the county clerk, sheriff and jailer.
However, as concerns the magistrates and coroner, the maximum rubber dollar amount ($26,058 per year) would violate §§ 3 and 171 of the Kentucky Constitution, which call for public service in consideration of payment of public money, if those offices in Leslie County are not full time positions. We wrote in OAG 77-774, copy enclosed, that the courts would uphold the application of KRS 64.527 (rubber dollar principle) to the justices of the peace in Pike County, under the assumption that they actually work full time, i.e., at least a five day work week. If they work full time, then the payment of the rubber dollar maximum compensation would not be discriminatory concerning other county officials who work full time or nearly so. See Johnson v. Dixon, Ky., 501 S.W.2d 256 (1973) 258. Thus if a magistrate actually puts in each week 1 day out of a 5 day work week for Leslie County, he would be entitled, equitably, to 20% of $26,058.00 per year.
Since salaries set for constitutional officers cannot be decreased, pursuant to § 161 of the Kentucky Constitution, which prohibits a "change" in compensation during term, the problem concerning the overpayment of the magistrates and coroner could only be resolved by circuit court action, wherein the new fiscal court would seek to set aside the order as relates to those officers who are part time.
The salaries of nonconstitutional officers may be increased or decreased during the term, depending upon the workload, performance, and the general equitable concept.
Question No. 2 reads:
"Would the incoming members of the fiscal court be legally liable, or subject to legal action, if they made no change in this salary structure set forth by the retiring court?"
We have pointed out the responsibilities and options above. As concerns the constitutional officers working full time there is no problem, so long as the compensation can be funded. The part time constitutional officers' salaries would require a circuit court action by the new fiscal court. The new salaries for any part time officers should not be honored by the new fiscal court. If they are paid (new salaries for part time officers), the new fiscal court members would be personally and individually liable. Remember that none of the new salaries for constitutional officers can be decreased at this point, short of court action.
As we said, the new fiscal court has a responsibility of examining the salaries for the nonconstitutional officers (includes constitutional officer deputies and the county treasurer) , to see if they are equitable and reasonable. If they are found to be not equitable nor reasonable, the new fiscal court can change such salaries to make them so.
Question No. 3:
"Would the incoming court be bound to this action on behalf of the deputies and functioning officers (example, county treasurer) ?"
We have just answered that.
Question No. 4:
"If the fiscal court cannot raise their salaries during their term of office, can they reduce their salaries? "
We have answered that above. Constitutional officers' salaries may be increased during term up to the authorized rubber dollar maximum for that year. Such salaries cannot be decreased during term, since that would not be "rubber dollar" , and would constitute a change in compensation, as prohibited by §§ 161 and 235 of the Kentucky Constitution. Salaries of nonconstitutional officers may be increased or decreased during the term.
STEVEN L. BESHEAR, ATTORNEY GENERAL
BY: CHARLES W. RUNYAN, Assistant Deputy Attorney General