Request By:
Hon. Dale M. Morris
Larue County Attorney
Courthouse
Hodgenville, Kentucky 42748
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Larue County Fiscal Court is faced with the following facts:
"In May, 1981, by Order of the Fiscal Court in the hand-written minutes of said meeting a salary of $10,200.00 was approved for the Sheriff's Chief Deputy. At that time, unbeknownst to anyone the typewritten minutes transposed the figure to $12,000.00. In June, 1983 the Sheriff appeared before the Fiscal Court and requested a salary increase to $12,000.00 plus a 3.9% cost of living raise for other employees. The official minutes, the typewritten ones, were checked and it was ascertained that the Chief Deputy's salary was already $12,000.00 and the Sheriff was so advised much to his surprise, since he was operating under the assumption that the salary was $10,200.00. According to the Sheriff and as recollected by the Judge Executive and at least one magistrate, the Court told him to pay the $12,000.00 and the Court approved the 3.9% cost of living increase. The Sheriff began to pay the Deputy at this rate in June, 1983.
Recently, in checking the law for purposes of requesting another increase in salary the minutes were checked again and at my request the original minutes were checked and the typographical error was discovered."
From the above facts the following questions arise:
"1. Can the Fiscal Court legally by nunc pro tunc order raise the Deputy's salary retroactive to the June, 1983 meeting and approve the 3.9% cost of living on same?
2. Since the minutes do not reflect the discussion surrounding the increase in salary at the June, 1983 meeting and since the Court relied on the $12,000.00 figure as per the typewritten minutes are they now estopped from raising the issue and demanding repayment?
3. If the Deputy is obligated to pay back any salary which may be excessive, and the Fiscal Court chooses to raise his salary to $12,000.00 effective January 1, 1984, can any excessive which may be owed by the Deputy be paid in monthly installments until fully paid?"
In respone to question No. 1, KRS 64.530 permits the fiscal court to adjust the salaries of deputies of the county constitutional officers, including deputy sheriffs, any time during the sheriff's term, provided that there is ample money in the county treasury for such purpose (where such salaries are paid wholly or in part out of the county treasury) . A sheriff is required to pay over to the county, after each calendar year, the excess of receipts over and above the amounts allowable for his personal compensation, the compensation of his legally authorized deputies, and authorized offical expenses. Funk v. Milliken, Ky., 317 S.W.2d 499 (1958) 506.
However, the specific problem here is whether or not the fiscal court has the authority to authorize the salary raise for the deputy sheriff retroactively to June, 1983.
It is our opinion that the presently proposed salary raise can be made effective retroactively to January 1, 1984, since the salary is under an annual salary concept, though it is paid out on a monthly basis. See KRS 64.530(3), which speaks of deputy compensation expended "each year," and Funk v. Milliken, above. Mr. Bob Purdom, State Local Finance Officer, has indicated to us that his office has used that interpretation administratively over a long period of years. See KRS 68.250, 68.260 and Burbank v. Sinclair Prairie Oil Co., 304 Ky. 833, 202 S.W.2d 420 (1947), relating to contemporaneous construction of statutes where the statutes are not sufficiently explicit.
In connection with question No. 2, we assume that since May, 1981, the deputy sheriff was paid at the rate of $12,000.00 per year, although the hand-written minutes reflect the figure of $10,200 per year. We assume that the fiscal court relied upon the $12,000 as per the typewritten minutes. Thus we assume that neither the deputy sheriff nor the fiscal court members were actually aware of the $10,200 figure in the hand-written notes. "One of the requirements for an estoppel is that the person asserting it has been 'exclusively ignorant of the true facts' and that he has changed his position to his material detriment in reliance upon the words or conduct, affirmative or negative, of the other party." City of Georgetown v. Mulberry, Ky., 485 S.W.2d 503 (1972). The latter case also ruled that no estoppel arises from mere silence where the facts are equally known to both parties. See also Tarter v. Turpin, Ky., 291 S.W.2d 547 (1956) 549. Each case of estoppel must rest on its facts and circumstances. 28 Am.Jur.2d, Estoppel and Waiver, §§ 26 and 27. In connection with the party claiming estoppel, the necessary elements are: (1) lack of knowledge of the true facts in question; (2) reliance in good faith upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon is of such character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice. See Ibid., § 35. Under the facts presented to us, we believe the above three necessary elements for estoppel are present.
In other jurisdictions estoppel may be invoked against a government entity in exceptional cases where justice so requires, but not if its application tends to thwart public policy. Goodwill Industries of Southern California v. Los Angeles County, 117 Cal. App. 2d 19, 254 P.2d 877 (1953). In that case the court pointed out that the government does not lose its revenues because of an erroneous ruling of an administrative official as to the meaning of a tax law. It has been held that a county, like an individual, may be estopped by its acts in failing to do justice and equity.
The court, in Maryland Casualty Co. v. Magoffin County Bd. of Ed., Ky., 358 S.W.2d 353 (1962) 359, invoked the rule that, subject to special exceptions, the doctrine of equitable estoppel has no application to governments, when their officials are acting in governmental capacities. Judge Palmore, in dissenting, observed:
"The doctrine that in their dealings with the public the arms and agencies of the state are held to different and lower moral standards than those that are binding upon everyone else is an offensive anachronism. If it cannot be defended from the standpoint of good faith and ethical conduct, as the majority opinion admits, then it is an ugly parasite on the face of the law and ought to be removed. As the rule was created by the courts in the first place, and continues in force by no other authority, it is right and proper that the injustice be likewise corrected by the courts. I therefore dissent from that portion of the foregoing decision which holds the principle of estoppel inapplicable to the acts of public officials."
Ten years after the Maryland Casualty decision, the Court of Appeals "cleaned it up" by obviously, in City of Georgetown v. Mulberry, above, abandoning the doctrine of non-applicability of estoppel to governmental activities. The case was decided on some other basis.
We conclude that the fiscal court is estopped from raising the salary mixup issue.
According to the facts submitted, the deputy sheriff was ignorant of the hand-written minutes providing for a salary of $10,200. In addition, the members of fiscal court were unaware of the hand-written minutes of May, 1981. Under the circumstances it is our conclusion that the fiscal court is now estopped from raising that issue and demanding repayment of the difference between $10,200 and $12,000 per year.
It is not necessary to answer question No. 3, since we conclude no pay back of salary money is required.