Request By:
Honorable David G. Mason
House of Representatives
58th Legislative District
Route #1
Eminence, Kentucky 40019
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You say some of the persons being elected as county attorney may be serving for the first time. You ask how this could affect their compensation and expenses. Specifically, in question no. 1 you ask whether there is a difference in compensation for a county attorney elected in 1977 who was county attorney in 1976 and for a county attorney elected in 1977 who was not.
Section 14(1) of H.B. 17 of the 1976 Extraordinary Session provides that "each county attorney shall receive, for prosecutorial duties, an annual salary to be paid out of the state treasury which shall be the total compensation as county attorney which he received during the calendar year 1976, but which shall in no event be less than $7,200." (Emphasis added).
If Section 14(1) were to be construed to provide that the language "total compensation as county attorney which he received during the calendar year 1976" applies only to an elected county attorney who was in office as county attorney in 1976, it would produce an absurdity for that unfortunate soul who, while being elected in 1977, did not have the good fortune to be serving in the office of county attorney in 1976. (Emphasis added). Under that construction the legislation would be arbitrary and absurd. See § 2, Kentucky Constitution; and
Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963). "It is never to be presumed that the legislature intended to enact an absurd statute, though courts must ever be cautious not to substitute their opinion for that of a legislature as to the intent of an enactment."
Swift v. Southeastern Greyhound Lines, 294 Ky. 137, 171 S.W.2d 49 (1943) 51. No one could seriously contend that Section 14(1), taken literally, would constitute other than an absurdity. Thus, as relates to the phrase "total compensation as county attorney which he received during the calendar year of 1976" can only mean "the incumbent county attorney" instead of "he". (Emphasis added). The intent clearly seems to have been that the compensation of that office in 1976 is the measure of the prosecutorial compensation of a county attorney serving in January, 1978, and thereafter.
The answer to your first question is that there is no difference in compensation of a county attorney who was not in office in 1976 and a county attorney who was. The county attorney in 1978 1 should receive from the state for his prosecutorial duties an amount equal to the total compensation received by the incumbent county attorney as compensation for his public duties in that office.
Section 14(2) provides an "expense" allowance of $250 per month [not compensation] for each county attorney, payable out of the state treasury, regardless of whether he was serving in that office in 1976 or not. By Section 14(3) and Section 7 of H.B. 17, the county attorney is given a statewide function which qualifies him for the monetary limit of $12,000 per year [§ 246, Ky. Const.], subject to the annual adjustment under the rubber dollar principle using current C.P.I. Thus the combined compensation of a county attorney in any one year [prosecutorial paid by state and civil work for county paid by county] cannot exceed the $12,000 level adjusted to the current Consumer Price Index amount. 2
Question No. 2:
"What are the various salaries, expenses and limits of compensation applicable to the job of county attorney both from the state and the county fiscal courts beginning, January, 1978?"
We have stated the prosecutorial compensation above and the state expense allowance. We also stated the overall maximum compensation to be derived from both the state and county. The compensation of the county attorney for his civil work for the county is a matter for the fiscal court. KRS 64.530(1), Sections 14(3), 20, and 21, H.B. 17. Section 11(3) guarantees that office expenses incurred by the county attorney in the performance of his duties as criminal prosecutor shall be paid by the Commonwealth. Section 14(2) of H.B. 17 suggests that the $250 monthly expense allowance is to be construed as a minimum advancement toward the payment for necessary office expenses in performing prosecutorial work for the Commonwealth. Office expenses incurred by the county attorney in the performance of his duties as legal adviser to the county shall be paid by the fiscal court as required by statute. See KRS 64.530(3), as amended by Section 20, H.B. 17.
Question 3 reads:
"May a county attorney continue to represent the commonwealth at preliminary hearings concerning felony warrants after January, 1978, as he has in the past as a duty of his office? If he cannot, may he do so on behalf of the commonwealth's attorney."
Section 6(2) of H.B. 17 provides:
* * *
"(2) The county attorney shall attend the district court in his county and prosecute all violations of criminal and penal laws within the jurisdiction of said district court."
The subsection just cited is broad enough to mean that the prosection of preliminary hearings, involving felonies or misdemeanors, in the district court is a responsibility of the county attorney on and after January 2, 1978. However, Subsection (3) of Section 6 provides that the commonwealth's attorney and county attorney in a judicial district shall cooperate in the enforcement of criminal and penal laws. When necessary, the commonwealth's attorney and county attorney shall assist each other in prosecution within their respective courts.
Footnotes
Footnotes
1 Regardless of whether he ever served as county attorney before 1978 or not.
2 The maximum level for 1977 is $29,294.40.