Request By:
Mr. Aubrey R. Mooney
Webster County Attorney
Dixon, Kentucky 42409
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written that the Webster County jailer received a salary in the calendar years of 1979 and 1980 for janitorial work in the courthouse. In 1981, the Kentucky Auditor of Public Accounts maintained that the jailer should return those salaries to the county, since for 1979 and 1980 he had already attained the maximum rubber dollar compensation.
Question No. 1 reads:
Would janitorial work in the courthouse performed by a county jailer in 1979 and 1980, be considered a non-official duty?
Under KRS 67.130 the county judge executive, with approval of fiscal court, may employ the jailer as superintendent of all county buildings, grounds and other properties at the county seat, as he deems appropriate.
KRS 67.130 reads in part:
The fiscal court of each county shall annually appropriate a sum sufficient to purchase the labor and materials necessary to maintain and operate county property, including the jailer's residence if owned by the county, and to keep the jailer's residence in repair and in clean, comfortable and presentable condition. Any sum appropriated for maintenance and operation of the jailer's residence shall be expended by the jailer. The county attorney shall bring civil action in the name of the county to recover possession of or for injury to or intrusion or trespass upon any such county property, and the net proceeds of any such recovery shall be paid into the county treasury.
The point is that the statute requires, where the jailer is given the role of superintendent of county buildings, the fiscal court to: (1) establish a salary for the jailer for his management services and (2) establish a separate account for the necessary purchase of any supplies, materials or equipment required to be used by the jailer in carrying out his janitorial duties. The above accounting responsibility of fiscal court involves the establishing of two entirely separate accounts. See
Perkins v. Cumberland County, 294 Ky. 737, 172 S.W.2d 651 (1943); and
Fannin v. Davis, Ky., 385 S.W.2d 321 (1964).
Any "salary" to the jailer under KRS 67.130 must be considered in the total "statutory" compensation permitted the jailer for those two years under the rubber dollar compensation. See
Matthews v. Allen, Ky., 360 S.W.2d 135 (1962) (the Consumer Price Index concept applied to § 246, Kentucky Constitution).
The jailer, in this situation, along with fiscal court, has the burden of properly isolating the "statutory salary" part from the supplies and equipment part of funds received by the jailer. Where the jailer gets someone to assist him in his managerial role, funds received by the jailer as "salary" would still go against him as "salary" for the portion of his salary paid to assistants to perform his role as superintendent.
The case of
Buchignani v. Lexington-Fayette Urban County Government, Ky. App., S.W.2d (April 30, 1982), is distinguishable from this situation, since here a clear statutory function is involved in KRS 67.130. In that case the additional duties performed by the jailer were non-statutory. See KRS 64.527 and § 246, Kentucky Constitution. The jailer, Buchignani, was simply performing fingerprinting and photographing of prisoners under a contract with county government, but not as a part of his official "statutory" duties.
Question No. 2:
If the janitorial duty can be considered non-official, should the Webster Fiscal Court be bound by the Court of Appeals' decision and return to the jailer his compensation for janitorial work?
We have answered that above. His work as superintendent of county buildings is statutory.
Question No. 3:
Is the fiscal court bound to apply the report of the Auditor of Public Accounts and require the jailer to bring suit against Webster County if he wishes for his compensation to be returned to him?
The Auditor of Public Accounts, as an independent state agency, has performed his function. However, he is an administrative officer, not a legal officer, and must observe the inherent limitations of KRS 43.050, 43.070, 43.075, and 43.090. The problem here is a mixture of accounting and law (constitutional) principles. The auditor is required to audit the county officials mentioned in KRS 43.070. He is required to determine administratively whether or not the official is complying with various applicable legal requirements under KRS 43.075. Under KRS 43.090(2), the State Auditor is required to make a written report to officials named therein, calling attention in specific terms to any mismanagement, misconduct, misapplication or illegal appropriation or extravagent use of money received or disbursed by any officer of the county examined.
While the auditor's audit is primarily factual in nature, based upon accounting principles, the fiscal court is entitled to rely upon the audit, provided the county attorney can correctly and accurately tell that body that the audit deals strictly with the isolated "salary" as defined above. Thus if the audit correctly reflects isolated "salary" , and nothing else as dealt with above, the "salary" for the two years would be an unconstitutional addition to his regular jailer's compensation for 1979 and 1980, provided that regular jailer compensation for the two years was at the maximum rubber dollar amount permitted by KRS 64.527 and § 246, Kentucky Constitution. Where the fiscal court has good legal reason to believe that the audit isolates the "salary" , as such, it can rely in good faith on the audits. See