Request By:
Mr. Joe C. Morris, Jr.
Branch Manager
County Fee Systems
Department of Local Government
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Nathan Goldman, Assistant Attorney General
You request a formal opinion of this office concerning the accuracy of your computations of the maximum compensation of state, county and city constitutional officers. Pursuant to KRS 15.755(7), 15.765(3), 64.480(2), 64.480(4), 64.527 and 83A.075, you are required to annually compute by the second Friday in February the maximum compensation payable to these officials under the "rubber dollar" theory adopted by the court in Matthews v. Allen, Ky., 360 S.W.2d 135 (1962) and Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965).
Since we are dealing with the court-established formula application of Section 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. Information from the United States Department of Commerce indicates that the 1949 Consumer Price Index (CPI) was 71.4, while the CPI for the end of 1989 was 377.6.
STATE CONSTITUTIONAL OFFICERS
Section 246 sets a maximum compensation of $ 12,000 for 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. Pursuant to KRS 64.480(2) these officers must be paid the maximum permissible compensation each year.
Pursuant to the rubber dollar theory, the maximum annual compensation possible for these officers for 1990 would be $ 63,462 which is computed as follows:
377.6 / 71.4 (current CPI in terms of 1949) = X / $ 12,00071.4X = 377.6 X $ 12,00071.4X = $ 4,531,200X = $ 63,462 (rounded)
GOVERNOR
KRS 64.480(4) requires your office to compute an adjusted salary of the Governor by multiplying $ 60,000 by the increase in the CPI during the period January 1, 1984, to the current calendar year. Notwithstanding the budget restrictions of two percent (2%) for FY 1984-85, three percent (3%) for FY 1985-86, and two percent (2%) for FY 1988-89, the CPI adjusted compensation paid to the Governor for the entire calendar year of 1985 and subsequent years shall be the base salary for purposes of computing current salary. The base salary here is sixty-thousand dollars ($ 60,000) and the adjustment is the application of the Consumer Price Index during the period from January 1, 1984 to the beginning of the current calendar year of January 1, 1990. Thus statutory application requires progressive adjustments to the CPI. The CPI in 1984 was 303.5, and the CPI in 1989 was 377.6. Therefore, the Governor's maximum annual compensation for 1990 is $ 74,649 which is computed as follows:
377.6 / 303.5 (current CPI in terms of 1984) = X / $ 60,000303.5X = 377.6 X $ 60,000303.5X = $ 22,656,000X = $ 74,649
LOCAL OFFICIALS
The $ 7,200 maximum compensation of Section 246 of the Kentucky Constitution applies to county judge/executives, justices of the peace, county commissioners, county clerks, sheriffs, jailers and coroners pursuant to KRS 64.527 and mayors (except in cities of the first class) and city legislative body members pursuant to KRS 83A.075.
Under the CPI formula the maximum annual compensation possible for the above-mentioned local constitutional officers in 1989 would be computed as follows:
377.6 / 71.4 (current CPI in terms of 1949) = X / $ 7,20071.4X = 377.6 X $ 7,20071.4X = $ 2,718,720X = $ 38,077 (rounded)
Under the CPI formula, the maximum annual compensation possible for the mayor in cities of the first class in 1989 would be as follows:
377.6 / 71.4 (current CPI in terms of 1949) = X / $ 12,00071.4X = 377.6 X $ 12,00071.4X = $ 4,531,200X = $ 63,462 (rounded)
Your computations are correct.
COUNTY ATTORNEY
The county attorney, although a county constitutional officer under Section 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 Section 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.
Thus, the county attorney's total maximum salary for 1990 would be computed as follows:
377.6 / 71.4 (current CPI in terms of 1949) = X / $ 12,00071.4X = 377.6 X $ 12,00071.4X = $ 4,531,200X = $ 63,462 (rounded)
KRS 15.765(1) provides, in effect, for the indexing of the $ 7,200 level for his prosecutorial duties. The maximum compensation which the county attorney may receive for performing his prosecutorial function in 1990 would be $ 38,077 which is computed as follows:
377.6 / 71.4 (current CPI in terms of 1949) = X / $ 7,20071.4X = 377.6 X $ 7,20071.4X = $ 2,718,720X = $ 38,077 (rounded)
COMMONWEALTH ATTORNEY
Full-Time
Pursuant to KRS 15.755(7), the maximum annual compensation possible for full-time commonwealth attorneys for 1990 would be $ 63,462, which is computed as follows:
377.6 / 71.4 (current CPI in terms of 1949) = X / $ 12,00071.4X = 377.6 X $ 12,00071.4X = $ 4,531,200X = $ 63,462 (rounded)
Part-Time
OAG 84-54 interpreted the provisions of KRS 15.755 to indicate that part-time commonwealth attorneys are to be paid a salary equal to the maximum state share for the county attorney. As stated above, that salary is $ 38,077 for 1990.
We must call to your attention a provision in the 1988 biennial budget - KRS Chapter 47, Appendix A, Part VII, Paragraph 3, which states:
"For fiscal year 1990, salary increases for state officers shall be computed against the fiscal year 1989 adjusted base mandated in paragraph 2 above."
In Comm. ex. rel. Armstrong v. Collins, Ky., 709 S.W.2d 437 (1986), the court held that the budget bill could limit state officers' salaries. However, we are at a loss to determine what limitation, if any, paragraph 3 intended. The rubber dollar theory as announced in Matthews v. Allen, supra, and Comm. v. Hesch, supra, requires reference back to 1949 and the current year's CPI. It does not entail a year to year percentage change; that is, an increase in X% over the previous year. If the legislature had intended to limit the percentage increase from 1989 to 1990, it could have put a specific amount in the budget bill, as was done for the 1989 increase over 1988. In the absence of such an amount, we must follow the court-mandated rubber dollar theory.