Request By:
Mr. William D. Stephens
County Fee Systems
Department of Finance
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Pursuant to KRS 15.755(7), 15.765(3), 64.480(2) and 64.527, the Finance Department is required to annually compute by the second Friday in February the maximum compensation payable to state and local constitutional officers under the rubber dollar concept (Consumer Price Index) adopted by the court in
Matthews v. Allen, Ky., 360 S.W.2d 135 (1962). See also
Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965). You have requested that we indicate by an opinion whether or not your calculations, based upon C.P.I. data furnished by the United States Department of Labor, are accurate.
Since we are dealing with the court formula application of § 246 of the Kentucky Constitution, which sets forth maximum compensation levels for state and local governmental constitutional officers, we shall show the formula for the two levels of officials:
LOCAL OFFICIALS
The $7200 monetary level of § 246 of the Constitution applies to county judges executive, county clerks, sheriffs, justices of the peace, county commissioners, coroners and jailers, pursuant to KRS 64.527. The implementation of the indexed principle will depend upon the fiscal court setting salaries payable out of the county treasury and the operation of the fee system for fee officers. Thus the fee officer can apply fees earned by himself or herself, without any action on the part of fiscal court, up to the maximum payable for the particular year under the indexed system.
Under the C.P.I. formula, the maximum annual compensation possible for local constitutional officers in 1982 would be as follows. It is based upon the information, obtained from the U.S. Department of Commerce, that the 1949 C.P.I. was 71.4, while the C.P.I. for the end of 1981 was 281.5.
281.5 (current C.P.I. in terms of 1949) / 71.4 = X / $7200 (§ 246)
71.4X = 281.5 X 7200
71.4X = $2,026,800
X = $28,387.00
STATE CONSTITUTIONAL OFFICERS
This will include the lieutenant governor, attorney general, superintendent of public instruction, commissioner of agriculture, secretary of state, state treasurer, auditor of public accounts, and clerk of the Supreme Court of Kentucky. Note that under KRS 64.480(2), the officers listed above and in subsection (2) of the statute must be paid the maximum of $47,311.00 for their services in 1982.
281.5 (Current C.P.I. in terms of 1949) / 71.4 = X / $12,000 (§ 246)
71.4X = 281.5 X $12,000
71.4X = 3,378,000.00
X = $47,311.00
Thus it is our opinion that your computation of maximum compensation possible for 1982 for state and local constitutional officers is accurate.
It must be borne in mind that the language in the statutes about the annual "increase or decrease" in the Consumer Price Index is pragmatically academic, since the critical matter is simply the maximum compensation possible under the current indexing as arrived at under the formula established in Matthews v. Allen, above. Thus the annual increase in the C.P.I., standing alone, can be misleading, in terms of officers' compensation being adjusted upward as a result of the current indexing.
THE SPECIAL CASE OF THE COUNTY ATTORNEY
The county attorney, although a county constitutional officer under § 99, Kentucky Constitution, and KRS 69.210, has been given a state-wide function in his prosecutorial role. KRS 15.765(3) establishes the indexing of the original $12,000 maximum in § 246 of the Constitution as the maximum compensation possible for the county attorney, regardless of what he receives from the fiscal court as county attorney, the county's civil advisor, and from the state as a state prosecutor. That point was decided as early as 1928 in
Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133, in which the court ruled that the constitutional limit of compensation for constitutional officers applies whether such services are rendered in one position or more than one. Now KRS 15.765(1) provides in effect for the indexing of the old $7200 level for his prosecutorial duties, which in 1982 would amount to $28,387.00, as the possible maximum for the prosecutorial function. However, KRS 15.765(3) ties the county attorney to the indexing of the $12,000 level, which in 1982 is $47,311.00, which is the total maximum compensation payable for his civil and criminal functions in 1982.
Notwithstanding the possible maximum of $28,387.00 for the county attorney's prosecutorial function in 1982, the General Assembly, in enacting the budget in 1980 (1980 Acts, Ch. 109, Part I, item 22, p. 215) wrote that "notwithstanding other statutory provisions to the contrary, the above appropriation includes a maximum 6% salary increase for elected officials . . ." That pertained to the unified prosecutorial system. This 6% increase now applies to the 1981 maximum state share of the county attorney's salary, which 1981 maximum was $24,575.04. When the 6% increase is added to the $24,575.04, the result is $26,049.54, being the 1982 maximum state share of the county attorney's salary. Thus the fiscal court may pay the county attorney a salary of up to $21,261.46, which would make a combined total of $47,311.00 compensation for 1982.
Note that the maximum state share for county attorneys in 1980 was $23,184, which was the $7200 level indexed. However, the inclusion of the 6% increase limitation in the 1980 budget bill cut across the operation of the strict C.P.I. system. Thus the maximum state share for county attorneys in 1981 was $24,575.04 (6% increase on the original $23,184.00).
COMMONWEALTH'S ATTORNEYS
The maximum compensation for the state office holders is also the maximum for commonwealth attorneys, as set forth in KRS 15.755(7). The $12,000 level is indexed. However, the 6% increase feature of the 1980 budget bill cut across the operative effect of the C.P.I. system, as it did for the county attorneys. Thus the maximum compensation in 1980 was $38,640.00. The maximum compensation in 1981 was $40,958.40 (reflecting the 6% increase over the 1980 figure). Thus the maximum compensation for commonwealth attorneys in 1982 is $43,415.90 (reflecting the 6% increase over $40,958.40 of 1981).
Concerning those commonwealth's attorneys who are part-time prosecutors, and considering KRS 15.755(5), it is our opinion that their annual compensation was intended to be based upon the application of the annual C.P.I. advancement percentage to the prior year's prosecutorial salary, with the starting year base being equivalent to the total compensation received in 1976 by county attorneys. See KRS 15.755(5) and 15.765(1). In this situation the prosecutorial statutes should be read together (same subject matter) in order to arrive at an equitable interpretation of ambiguous statutes. It would not make sense for the part-time commonwealth's attorneys to receive less salary than that maximum state share received by county attorneys as prosecutors. As was said in
Goodpaster v. U.S. Mortgage Bond Co., 174 Ky. 284, 192 S.W. 35 (1917), a statute should be so construed as to make its application equitable and just, instead of inequitable and unjust.
Thus, all of the part-time commonwealth's attorneys are to be paid a salary equal to the maximum state share for county attorneys. To be specific, the maximum state share for county attorneys in 1981 was $24,575.04. When the 6% increase for 1982 is added on, the maximum state share for county attorneys in 1982 is $26,049.54. Thus, the part-time commonwealth's attorneys may be paid $26,049.54 for 1982.
COMPENSATION MANDATED
We pointed out earlier herein that as to county constitutional officers, the maximum compensation payable under the indexed system is not mandated, except where the fee officer actually earns enough fees to justify the maximum.
As relates to the state officers in KRS 64.480, subsection (7) makes it clear that "the maximum permissible compensation effective for the entire year of 1977 and subsequent years will be the actual compensation to be paid said officials." (Emphasis added). Thus those state officials must receive the maximum indexed figure.
Under KRS 15.755 and 15.765, the maximum compensation of the commonwealth attorneys and county attorneys is not mandated.