Request By:
Mr. James S. Secrest
Allen County Attorney
Box 35
210 W. Main Street
Scottsville, Kentucky 42164
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On April 26, 1983, one of the sheriff's deputies submitted a claim to the fiscal court for overtime pay totaling $1,414.88. The fiscal court disallowed the claim, based upon its interpretation of KRS 64.530. In simple words, they believe that when the fiscal court fixes the deputies' salaries, no money in excess of that can be paid. The sheriff paid the overtime and wants credit on his settlement for the year 1983.
First, the salaries of such deputies can be paid out of the sheriff's fees, or out of the county treasury under proper budgeting procedure and availability of funds (see KRS Chapter 68), or paid by combination of sheriff's fees and the county treasury. Funk v. Milliken, Ky., 317 S.W.2d 499 (1958).
Under the broad definitions in KRS 337.010, as a result of statutory amendments in recent years, our office takes the position that the time and a half payments apply to deputies of county constitutional officers. See KRS 337. 010(1)(e) and (2) (definitions), and 337.285. The definitional statute does not exclude county employees or deputies of county constitutional officers. The ruling in OAG 67-333 to the contrary was prior to the statutory amendment referred to above and thus was correct at that time. It is clear that the county constitutional officers with deputies have the authority to authorize their deputies to work in excess of a forty-hour workweek, where it is reasonably necessary to carry out the statutory duties of the constitutional officer. Greenup County v. Millis, Ky., 303 S.W.2d 898 (1957); and Ewing v. Hays, 257 Ky. 259, 77 S.W.2d 946 (1935).
KRS 337.285 mandates the payment of overtime (time and a half) where the deputy works longer than a forty-hour week. See KRS 61.160 (5 day workweek) .
The answer to your first question is that if it appears that the overtime work was reasonably necessary to carry out the sheriff's duties, then the fiscal court must give the sheriff credit in the settlement for 1983 for the amount of overtime pay the sheriff effected from the funds of his office. You stated that this overtime claim was disallowed by the fiscal court. The overtime should normally have been paid out of the salary source, which was the county treasury for the particular deputy sheriff. If the fiscal court refuses to credit the sheriff's payment of overtime, and assuming that the overtime work was reasonably necessary, the fiscal court would be acting arbitrarily, contrary to § 2, Kentucky Constitution. See Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963).
On May 24, 1983, following the deputy's submission of his overtime payment to fiscal court, the fiscal court passed an order directing that no elected official of the county shall pay to any deputy any overtime wages or require the deputy to engage in overtime work without the prior approval of the fiscal court. The question is whether or not such fiscal court order was valid.
As we said above, the actual determination of whether overtime work is necessary rests with the employer, i.e., the constitutional officer who appointed the deputy and who pays the deputy's salary out of the fees of his office. See KRS 337.010(1)(d). If such overtime was reasonably necessary, then the sheriff should be given credit for making the overtime payment from his fees. It follows that the fiscal court has no authority to require its approval for overtime work of deputies of local constitutional officers, under the facts given, i.e., where the deputy's salary is paid out of the sheriff's fees. In addition, overtime payments are not wage fixations or adjustments in terms of KRS 64.530. Overtime payments are simply calculated at one and one-half of the regular salary rate established by fical court. See KRS 337.285.
In the event that the salary of the deputy is paid out of the county treasury, the fiscal court would not become the "employer" under KRS Chapter 337, but it would have the authority to approve or disapprove of overtime payment of such deputy, where the overtime is to come out of the county treasury. The fiscal court, under its powers given in KRS 67.080, would have the authority, in passing on such expenditure from the county treasury, to use its sound judgment as to whether the overtime was lawfully authorized by the sheriff. The employer in this situation is the constitutional officer, i.e., the sheriff, who is the actual employer under KRS 337.010(1)(d). The actual employer, as such, hires, fires, and directs the deputy in his statutory duties. See OAG 77-504, published Banks-Baldwin, pages 2-606 through 2-608, which is modified accordingly.