Request By:
Mr. Junie M. Tutterow
Administrative Branch Manager
Finance and Administration Cabinet
Division of County and Municipal Accounting
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request the formal opinion of this office concerning the accuracy of your computation of the maximum compensation of state, county, and city constitutional officers. You enclosed a copy of the 1984 Consumer Price Index issued by the United States Department of Labor.
Pursuant to KRS 15.755(7), 15.765(3), 64.480(2), 64.527, and 83A.075, the Finance and Administration Cabinet 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); and in Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965).
Since we are dealing with the court established formula application of § 246 of the Kentucky Constitution, which sets forth maximum compensation levels for state and local governmental constitutional officers, we shall indicate the formula for the following levels of officials:
LOCAL OFFICIALS
The $7,200 monetary level of § 246 of the Constitution applies to county judge executives, county clerks, sheriffs, justices of the peace, county commissioners and coroners pursuant to KRS 64.527. KRS 83A.075(1) requires you office to compute by the second Friday in February of each year the in February of each year the maximum annual compensation payable to the mayor in cities of the first class, and mayors in other cities other than first class and legislative body members.
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 the fiscal court, up to the maximum payable for the particular year under the indexed system. Note KRS 441.245, concerning the fiscal court's setting the jailer's salary, but not to exceed the rubber dollar maximum pursuant to KRS 64.527. Under KRS 83A.075(2), the legislative body of the city shall set the compensation of the city officers mentioned in accordance with KRS 83A.070 at a rate no greater than that stipulated by the Finance and Administration Cabinet (observing the C.P.I. maximum) .
Under the C.P.I. formula, the maximum annual compensation possible for local constitutional officers in 1985 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 1984 was 315.5. 315.5(current C.P.I. in terms of 1949)= X71.4$7,20071.4X= 315.5 x $7,20071.4X= $2,271,600X= $31,815 (rounded).
All of the above local officials are under the $7,200 level of § 246, Constitution, except for the mayor in first class cities, which level is $12,000. The computation for that mayor is as follows: 315.5(current C.P.I. in terms of 1949)= X71.4$12,00071.4X= $3,786,000X= $53,025 (rounded)
It is our opinion that the maximum compensation for such local constitutional officers for 1985 is accurately computed to be $31,815, except that for the mayor of a first class city the maximum is $53,025.
STATE CONSTITUTIONAL OFFICERS
This includes 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, as named in KRS 64.480(2), must be paid the maximum permissible compensation each year.
Under the C.P.I, formula, the maximum annual compensation possible and to be paid precisely to the aforementioned state constitutional officers in 1985 would be as follows: 315.5(current C.P.I. in terms of 1949)= X71.4 $12,00071.4X= $3,786,000X= $53,025
It is our opinion that your computation is correct.
GOVERNOR
KRS 64.480(4) requires your office to implement the rubber dollar concept, by the second Friday in February 1985 as a beginning, by an adjusted salary of the governor by multiplying sixty thousand dollars ($60,000) by the increase in the Consumer Price Index during the period from January 1, 1984, to the beginning of the then-current calendar year. The actual compensation paid to the governor for the entire calendar year of 1985 and subsequent years shall be adjusted salary. The C.P.I. for increase from January 1, 1984, to January 1, 1985, was four percent (4%). Thus $60,000 x 104% = $62,400.00. Your computation is correct.
THE SPECIAL CASE OF THE COUNTY ATTORNEY
The county attorney, although a county constitutional officer under § 99 of the 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 $7,200 level for his prosecutorial duties, which in 1985 would amount to the possible maximum of $31,815.00. However, KRS 15.765(3) ties the county attorney to the indexing of the $12,000 level, which in 1985 is $53,025.00, which is the total maximum compensation payable for his civil and criminal functions in 1985, as computed above. Notwithstanding the possible maximum of $31,815.00 for the county attorney's prosecutorial function in 1985, the General Assembly, in enacting the 1984 budget, wrote this: "Notwithstanding the provisions of KRS 15.755, 15.765, 18A.355, 64.055, 64.480, and 64.485, the salary increment provided herein shall not exceed the lesser value of five percent (5%) or the increase in the Consumer Price Index . . ." (Emphasis added). The 1984 state annual compensation paid to the county attorney for his prosecutorial duties was computed to be $28,719.62. See OAG 84-54.
Thus the actual state compensation to be paid the county attorney during 1985 would be a function of both the statutory computation, KRS 15.765(1) and the budgetary language of the budget bill (C.P.I. increase = 4%). The actual compensation to be paid to the county attorney for 1985 is as follows:
1984 State Salary X 104% = 1985 State Salary $28,719.62 X 104% = $29,868.40
Your computation is correct.
The budgetary language of the 1984 state budget, referred to above, is being litigated. The Attorney General is contending that the budget language, which purports to modify or change existing non-appropriations statutes, is unconstitutional. However, your computation is correct, as based upon the budget language.
COMMONWEALTH'S ATTORNEY
Pursuant to KRS 15.755(7), you are required to compute the annual maximum compensation of the commonwealth's attorney. Under the C.P.I., the maximum permissible compensation for 1985 is $53,025, as indicated above ($12,000 level, § 246, Const.).
However, the language of the budget bmaa ep a#90W cited above, restricted the commonwealth's attorney to as advance not to exceed the C.P.I. increase.
Thus the maximum annual compensation for the commonwealth's attorney during 1985 would be a function of both the statutory computation, KRS 15.755(7), and the 1984 budgetary language cited above (lesser value of 5% or the increase in the C.P.I., which equals 4%).
1984 maximum compensation X 104% = 1985 compensation $47,866.04 X 104% = $49,780.68
Pursuant to KRS 15.755, the part-time commonwealth's attorneys are to be paid for 1985 a salary equal to the maximum state share for the county attorney. That salary, as above indicated, is $29,868.40 for 1985.
It is our opinion that all of your computations are correct. It must be borne in mind that § 246 of the Kentucky Constitution is not self-executing. It requires specific implementation of the General Assembly by way of appropriate statutory enactment. Those implementing statutes have been dealt with above.