Request By:
Mr. Thomas C. Peck
Menifee Circuit Clerk
Frenchburg, Kentucky 40322
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Until December 1977, the Menifee Circuit Clerk was paid by the Menifee County Fiscal Court an annual salary of $800 ($66.67 per month) as ex officio librarian of the county law library. At that time, your father was circuit clerk and was advised that he could no longer receive the salary due to the fact that all circuit clerks in Kentucky would become state officials as of January 2, 1978, and would be paid from state funds. He did, however, continue his duties as law librarian without compensation. You became circuit clerk on August 1, 1980, and continued in a like manner.
You request the opinion of this office on the following questions:
"Is the circuit clerk entitled to receive a salary as law librarian? If so, are the circuit clerk and former circuit clerk entitled to receive back payment for duties not previously compensated, and should such back payment include any applicable cost of living increases, etc?"
The establishing of a county law library in the county seat is mandatory; and the circuit clerk is ex officio librarian of the county law library. KRS 172.100 and 172.110(1). The salary, payable out of the county treasury, shall be not less than $50 nor more than $100 per month. The payment of such salary is mandatory. The statute says "shall receive." (Emphasis added). See KRS 446.010(29).
By statute, KRS 30A.010, the circuit clerk is a state officer. See also KRS 30A.170.
Since the official population of Menifee County is 3,936, the annual circuit clerk's salary payable out of the state treasury per annum, subject to the minimum provided by subsection (2) and the rubber dollar calculation of subsection (3) of KRS 64.055 is $11,000. While the maximum salary, as set forth in § 246 of the Kentucky Constitution and indexed under the Consumer Price Index concept, must apply to the same person for public services, regardless of whether such services are rendered in one position or more than one, the circuit clerk can accept the library salary, provided that the regular clerk's salary and the library salary in the aggregate do not exceed the rubber dollar maximum for the particular year. The potential maximum of a circuit court clerk in 1982 is $47,311.00. See Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133 (1928) 137; and Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965).
KRS 30A.140 provides that every clerk shall perform such additional duties as may be prescribed by statute or court rule. Section 114 of the Kentucky Constitution deals with clerks of the courts. The clerks are considered as a part of the judicial system. The clerks of the circuit court are also clerks of the district court.
We see no constitutional problem with KRS 172.110(1), except that the county law librarian function must not interfere with the clerk's court functions as envisioned by § 114, Constitution, and KRS 30A.010. We conclude that the circuit clerk is entitled to receive a salary from the county treasury, as a properly budgeted item under KRS Chapter 68, for actually serving as the ex officio librarian of the county law library. The salary provisions of KRS 64.055 relate solely to the work of the clerk as circuit and district court clerk.
For services as county law librarian in past years, and for which actual services the former clerk and you have not been paid, the fiscal court might be required by a court to make up those payments, under the salary established pursuant to KRS 172.110(1), but within the five year statute of limitation, pursuant to KRS 413.120(2). See Flowers v. Logan County, 148 Ky. 822, 147 S.W. 918 (1912) 919. Of course such county expenditure must be by a properly budgeted item under KRS Chapter 68. The librarian salary is not subject to indexing under the C.P.I., since KRS 172.110 makes no provisions for indexing.