Request By:
Hon. Thomas M. Bertram, II
Stanley and Bertram
317 Second Street
Vanceburg, Kentucky 41179
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of March 20 in which you relate that last week the city council enacted an ordinance raising the salary of the city council members to $3,000 and that of the mayor to $16,000. The question is raised as to whether or not this action on the part of the council was legal.
You further relate it was your position that regardless of the recent passage of House Bill 35 authorizing cost of living raises for these offices, that Section 161 of the Kentucky Constitution and KRS 83A.070 prevent the city council from raising their salary during their term of office except insofar as the cost of living increase is authorized by House Bill 35.
We agree with your conclusion. To begin with, House Bill 35 authorizing cost of living increases for members of the city councils and mayors of the various classes of cities, does not become effective until July 14, 1984. Irrespective of this fact, House Bill 35 deals solely with cost of living raises as computed each year by the state Finance and Administration Cabinet. In addition, the cost of living raise when it becomes effective applies to the fixed salary for the referred to city officers established as provided in KRS 83A.070. This statute requires that the salary be fixed not later than the first Monday in May of the year the officers are elected and provides that such salary cannot be changed during their term of office, except insofar as cost of living raises are allowed under House Bill 35 each year when it becomes effective. Section 160 of the Constitution also prohibits any change, except a cost of living adjustment held not to be a change in compensation in Matthews v. Allen, Ky., 360 S.W.2d 135 (1961) among cases in point.
In addition you will also note as pointed out in House Bill 35 that mayors and members of the city legislative bodies in cities other than the first class are limited as prescribed under Section 246 of the Constitution to a maximum of $7200 per annum. This is the maximum base upon which cost of living raises must be computed.
Under the circumstances, it is clear that the ordinance enacted by the city council raising the salary of members thereof to $3,000 and that of the mayor to $16,000 was illegal and contrary to the constitutional section mentioned and the provisions of KRS 83A.070 since it was enacted in midterm of the members of the city council elected in 1983 and that of mayor elected in 1981, none of which will be up for election until November 1985. We also might mention that the mayor's salary far exceeds the constitutional maximum fixed in Section 246 of the Constitution which is the base upon which future cost of living increases may be granted pursuant to the Consumer Price Index as computed by the state Finance and Administration Cabinet. Of course, the Consumer Price Index uses 1949 as the base year.