Request By:
Mr. Stephen M. Lanham
The Commonwealth-Journal
102 North Maple Street
Somerset, Kentucky 42501
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You are requesting an interpretation of a recent action by the Pulaski County Fiscal Court. On June 22, 1983, the Pulaski Fiscal Court approved a 16.38 percent salary increase for the county attorney, effective July 1, 1983. You say that is an increase of $190 per month, bringing his salary to $1,350 per month and $16,200 per year.
Your question is this:
"Is this action legal, and does it conform to state laws? It had been my impression that salaries of constitutional officers -- such as the county attorney -- could not be changed during a term except on the first Monday in May of an election year."
It is true that § 161 of the Kentucky Constitution expressly prohibits a "change of compensation", inter alia, of county constitutional officers after their election and during their term of office. However, 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 Kentucky 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, as to duality of function, 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 governmental position or more than one.
KRS 15.765(1) provides in effect for the indexing of the old $7200 level (§ 246, Ky. Coust.) for his prosecutorial Const.) for his prosecutorial duties, which in 1983 would amount to $29,486.00 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 of § 246, Constitution, which in 1983 is $49,143.00, which is the total for his civil and criminal function in 1983.
While § 161, Kentucky Constitution, prohibits a change of compensation of the county attorney during his term, the public compensation adjustment under § 246 of the Kentucky Constitution in terms of the rubber dollar concept (consumer price index) is permissible during the county attorney's term of office. See
Matthews v. Allen, Ky., 360 S.W.2d 135 (1962); and
Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965). The court wrote in Commonwealth v. Hesch, above, as follows:
"We further conclude that the salary increases here involved do not violate the purpose of the constitutional provisions prohibiting changing compensation during current terms of office, for on the theory of construction we have adopted, the salaries of the various offices are merely being kept abreast of their initial value or purchasing power."
Notwithstanding the possible maximum of $29,486.00 for the county attorney's prosecutorial function in 1983, the General Assembly, in enacting the state budget in 1982 (Ch. 398, page 1280), wrote that "notwithstanding other statutory provisions to the contrary, the above appropriation includes a maximum of five percent (5%) salary increase for elected officials and staff persons each fiscal year." The language pertained to the unified prosecutorial system. Pursuant to similar language in the 1980 budget bill (1980 Acts, Ch. 109, Part I, item 22, p. 215) the 1982 state annual compensation payable to the county attorney for his prosecutorial duties was computed to be $26,049.54. (See OAG 82-80).
Thus the actual state compensation to be paid the county attorney as prosecutor for 1983 would be as follows: 1982 state salary X 105% = 1083 state salary. That would be $26,049.54 X 105% x $27,352.02. Since the total maximum compensation for 1983 for the county attorney is $49,143, a fiscal court can, for the calendar year of 1983, pay the county attorney for his county civil function up to $21,790.98. Thus the county attorney's salary for his civil functions for the county in 1983 of $16,200 per that year is well within the maximum payable of $21,790.98. The particular percentage advancement over last year, under our above constitutional and statutory analysis, is not significant.
Remember that consumer price indexing, under the above appellate decisions, and the statutory implementation of § 246, Constitution, in no way violate the principle prohibiting a "change" in compensation during the term.