Request By:
Mr. Bill Stephens
Supervisor
County Fee Systems
Finance and Administration Cabinet
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request that we issue an opinion regarding the computation of the maximum compensation of state and county constitutional officers.
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. Note KRS 441.009, concerning the fiscal court's setting the jailer's salary, but not to exceed the rubber dollar maximum pursuant to KRS 64.527.
Under the C.P.I. formula, the maximum annual compensation possible for local constitutional officers in 1983 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 1982 was 292.4.
292.4/71.4 (current C.P.I. in terms of 1949) = X / $7200 (§ 246)
71.4X = 292.4 X 7200
71.4X = $2,105,280
X = $29,486.00 (rounded) .
It is our opinion that the maximum compensation for such local constitutional officers for 1983 is accurately $29,486.00. Your figures are correct.
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 $49,143.00 for their services in 1983.
292.4/71.4 (Current C.P.I. in terms of 1949) = X / $12,000 (§ 246)
71.4X = 292.4 X $12,000
71.4X = $3,508.800
X = $49,143 (rounded) .
It is our opinion that the above state constitutional officers must be paid $49,143 for 1983. Your figures are correct.
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 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 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, which in 1983 is $49,143.00, which is the total maximum compensation payable for his civil and criminal functions in 1983.
Notwithstanding the possible maximum of $29,486.00 for the county attorney's prosecutorial function in 1983, the General Assembly, in enacting the budget in 1982 (Ch. 398, page 1280), wrote that "notwithstanding other statutory provisions to the contrary, the above appropriation includes a maximum 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 during 1983 would be as follows: 1982 state salary X 105% = 1983 state salary $26,049.54 X 105% = $27,352.02
Since the total maximum compensation for 1983 for the county attorney is $49,143, a fiscal court can, for 1983, pay the county attorney for his county civil function up to $21,790.98.
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 5% increase feature of the 1982 budget bill is a special limitation. As indicated above, the maximum state official compensation for 1983 is $49,143.00. Pursuant to similar language in the 1980 budget bill (1980 Acts, Ch. 109, Part I, item 22, p. 215) the 1982 maximum annual compensation was $43,415.90. Therefore, the maximum annual compensation for the commonwealth's attorney for 1983 would be as follows: 1982 maximum compensation X 105% = 1983 maximum compensation $43,415.90 X 105% = $45,586.70. Thus $45,586.70 is the maximum compensation in 1983 for the full time commonwealth's attorney.
Pursuant to KRS 15.755, the part-time commonwealth's attorneys are to be paid for 1983 a salary equal to the maximum state share for the county attorney, which is $27,352.02.
Thus it is our opinion that all of your calculations as to salary were correct.