Request By:
Mr. Jerry W. Guffey
Grayson County Attorney
62 Court Square
Leitchfield, Kentucky 42754
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As the newly elected County Attorney of Grayson County, you have three questions concerning the position of county road supervisor.
Question No. 1:
"May the present fiscal court bind the fiscal court coming into office in January, 1982 with a contract for a county road supervisor which purports to run from December 1, 1980 to December 1, 1982?"
Under KRS 179.020(7), the period of employment of a county road supervisor may be two years or four years, in the discretion of fiscal court, beginning with the second Tuesday in January of an even-numbered year. Thus the appointment in question would be valid and continuing up to the second Tuesday in January of 1982, at which time that position would be subject to another appointment beginning the second Tuesday of January, 1982 and continuing until the second Tuesday in January in 1984. The subject two year appointment did not follow the literal requirement of the statute as to the term. Since the purported term had to begin the second Tuesday in January of 1980, the appointee could only fill out the remainder of the standard term ending on the second Tuesday of January, 1982. Thus the present county judge/executive, with the consent of the fiscal court, must establish that position and appoint a county road supervisor whose term will begin the second Tuesday of January, 1982, and will end as of the second Tuesday in January of 1984, if another two year term is desired by fiscal court. Otherwise, the new term would end on the second Tuesday in January of 1986. The county engineer or county road supervisor may be removed only for legal cause during his term. KRS 179.060. That is consistent with the "term" concept. But the term outlined in KRS 179.020(7) must be strictly followed.
Question No. 2:
"Must the fiscal court employ a county road supervisor or may the county judge/executive act as road supervisor? "
Under KRS 179.020, where the road engineer position is not established, the county road supervisor position must be filled by the county judge/executive, with consent of the fiscal court. Where that position, or road engineer position, has not been established, the county judge/executive may supervise, without additional compensation, the construction and maintenance of county roads. However, that is purely temporary and of an emergency nature. See KRS 179.020(5). The burden is upon the county judge/executive and the fiscal court to either establish the county road engineer position or the county road supervisor position. This is buttressed by the nature of the duties imposed upon the road engineer or supervisor under KRS 179.040, 179.070, 179.180, 179.210, 179.230, 179.280, and 179.370. Those statutory duties clearly suggest that he is indeed a since qua non. The county road supervisor has the same duties as the county road engineer if the fiscal court does not provide for the latter position. KRS 179.020(2); and
Prather v. Fulton County, Ky., 336 S.W.2d 339 (1960) 341. In fact, subsection (2) of KRS 179.020 provides that if the fiscal court does not provide for a county road engineer, the engineer's duties "shall be performed by a county road supervisor. . ." (Emphasis added). Note various functions of the county road engineer in KRS Chapter 178.
Question No. 3:
"If the budget adopted in April, 1981 provides for a salary of $200.00 per month and an unvouchered expense allowance of $200.00 per month for magistrates, would it be proper for the new fiscal court to amend that budget to provide a salary of $300.00 per month and an expense allowance of $100.00 per month for magistrates since the $200.00 allowance is not proper?"
First, KRS 64.258 authorizes an expense allowance to each justice of the peace not to exceed one hundred dollars ($100) per month.
The fiscal court, by an appropriate order, may specifically provide for compensation increases for the magistrates serving on fiscal court, provided the increase does not exceed the rubber dollar maximum for the particular year. See KRS 64.527 and
Commonwealth v. Hesch, Ky., 395 S.W 2d 362 (1965). Such salary fixation is also subject to Section 3 of the Kentucky Constitution and KRS 64.410(2)(c), which prohibit the payment of public funds except for the actual performance of public services. In simple words, one gets paid for the work he or she does.
One other limitation on salary fixation relates to the county budget. Where salaries are provided for by an order or resolution of fiscal court, there must be a properly established budget item designed to adequately fund the compensation authorized. See KRS 68.240. If there is sufficient money in the budget unit designed to include the magistrates' compensation, even with your new calculation ($300 per month instead of $200), there is no problem. The fiscal court order setting the salaries is the real determinant. The budget represents the establishing of budget units to fund authorized expenditures of county money. The funding of compensation for county officials and employees would normally come out of the "General expenses of county government" budget unit. See KRS 68.240(2)(a).