Request By:
Mr. James D. Paitsel, Jr.
Fulton County Attorney
Courthouse
Hickman, Kentucky 42050
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter reads in part:
"Pursuant to KRS 71.060, Fulton County approved the appointment of two (2) deputies and one (1) matron for the Fulton County Jail. The matron is paid for 40 hours per week and the two deputies are paid for 30 hours per week by the County. The jailer has now requested that his two deputies be increased and approved for 40 hours each per week.
"Because the budget has already been set for this year and because the jailer failed to request more than two 30 hour deputies until after we were two months into the fiscal year, some members of the Fiscal Court are hesitant to approve the increase at this time.
"My question is whether the County must amend the budget and pay the two deputies for 40 hours of work per week. If your answer to this question is no, then please advise if next fiscal year the County can refuse the Jailer's request for two 40 hour deputies and instead only allow him two 30 hour deputies. All opinions that I have read say the Fiscal Court shall set the compensation for deputies and matrons. Can the Fiscal Court set the compensation of deputies at less than 40 hours per week?"
Although public offices are required generally by KRS 61.160 to establish a five full-day work week, a county jail involves a continuous operation. See KRS 441.006, KRS 441.011, KRS 71.020, 71.030 and 71.040. Under KRS 71.060, any jailer may appoint not more than two (2) deputies and a matron and, with approval of the fiscal court, may appoint additional deputies at any time during the jailer's term of office. Such appointments must be reasonable in terms of the actual number of deputies needed and the public interest subserved. Com. v. Sizemore, 269 Ky. 722, 108 S.W.2d 733 (1937).
Assuming that the deputy appointments are reasonable, as mentioned above, it is our opinion that the fiscal court must establish their compensation for not less than 40 hours per week. See KRS 64.530. Bear in mind that the legislature contemplated that a deputy position is a full-time employment. Also these deputies (includes the matron) are subject to the payment of time and a half for needed employment in excess of 40 hours. See KRS 337.010 and KRS 337.285. Under KRS 64.530(4), the fiscal court can effect salary adjustments at any time.
Under the above analysis, the fiscal court would be acting arbitrarily if it refused to adjust such deputy salaries to take into account a 40-hour work week. See § 2, Kentucky Constitution, and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963).
Finally, such salary adjustments must be subject to proper budget procedure under KRS Chapter 68. As you know, expenditures in excess of the budget fund are illegal under KRS 68.300. KRS 68.290, however, authorizes a transfer of money from one budget fund to another to provide for emergencies. See the statute for details. This is subject to the rule that taxes collected for one purpose cannot be diverted to some other purpose. See § 180, Kentucky Constitution. Cf. KRS 68.280, which involves amending the budget to provide for expenditure of unanticipated income.