Request By:
Mr. Hamilton B. Simms
Washington County Attorney
108 West Main Street
Springfield, Kentucky 40069
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Washington County jail was not open during the 1981 calendar year and in 1982 there has been no open county jail. However, Washington County has a jailer, who lived in the jailer's residence. He was paid a salary as custodian of county property. See KRS 67.130.
Section 5 of H.B. 440, 1982 regular session, new KRS 441.009(2), provides that the jailer holding office on July 1, 1982, shall be entitled to a level of compensation in calendar year 1982 equal to the jailer's compensation in calendar year 1981, C.P.I. adjusted, or $12,000, whichever is greater. The fiscal court may set a higher salary, not to exceed the rubber dollar maximum under KRS 64.527. In the event the jail was closed during calendar year 1981, the Secretary of Finance may, upon proper documentation by the jailer, direct that a prior calendar year's level of compensation be used as a basis for setting the jailer's compensation pursuant to this section. KRS 441.009(5) provides that if the jail is closed for any reason, the jailer shall serve as transportation officer in transporting prisoners, as provided in KRS 441.500.
Question No. 1:
May the custodian fees be considered as part of the jailer's earnings for the period from January through June, 1982.
For calendar year 1982, the jailer is entitled to the greater of the calendar year 1981 salary or $12,000. We think there is a constitutional problem with using a prior (prior to 1981 calendar year) year of compensation, where the county jail was open, as a substitute for the 1981 calendar year referent base. See § § 3 and 171, Kentucky Constitution. An officer can only be paid for public services actually rendered. Thus the answer to the first question is that under the formula laid out in KRS 441.009(2), the jailer's earnings in 1982 from being buildings custodian cannot be used for such compensation formulation for the calendar year 1982. Of course, the jailer can keep his custodial earnings, provided that his total compensation does not exceed the rubber dollar maximum for 1982. See KRS 64.527. Moreover, his earnings as buildings custodian for the calendar year of 1981 would be his compensation for calendar year 1982, unless the $12,000 figure is greater, in which case the $12,000 would be his minimal salary for 1982.
Question No. 2:
May the fiscal court consider the benefit of free rent for the jailer's residence as income to the jailer in determining the amount of income earned by the jailer for the period from January, 1982 through June, 1982.
If the jailer was extended free rent in the calendar year 1981, the rent, if reduced to a reasonable figure, could be added to his custodial salary for calendar year 1981 in making the determination of his compensation for calendar year 1982 (the greater of 1981 compensation or $12,000).
Question No. 3:
If the custodian fees are not allowed as part of the jailer's earnings, would he be allowed $2,000.00 per month from July through December even though he did not perform any jailer's duties from January through June.
We have pointed out above how the jailer's custodial salary is used for calendar year 1981 in determining his compensation for 1982. Technically a jailer can accept compensation as custodian and add that to any other compensation fixed by fiscal court, provided the total does not exceed the rubber dollar limit for that year. But basically, the jailer can only be paid for services actually rendered.
KRS 441.009(3), in order to be consistent with the concept of annual salary, must be interpreted merely to show what a monthly breakdown in salary would be in the calendar year 1982.