Request By:
Mr. Charles D. Wickliffe
Attorney, Executive Department
for Finance and Administration
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Honorable Albert Jones has resigned his office as Commonwealth's Attorney for the Second Judicial District to accept appointment as United States Attorney for the Western District of Kentucky, and the Honorable Mark P. Bryan has been appointed to succeed him. The commonwealth's attorney for the Second Judicial District is a "full-time prosecutor" within the meaning of KRS 69.010(2), and since his county contains a second class city. Your question is whether each commonwealth's attorney serving in the Second District during the particular year can draw the maximum compensation, provided he actually earns the fees. Traditionally this kind of thing has been permitted.
The compensation of commonwealth's attorneys is treated in KRS 64.510. The full-time prosecutors shall receive as compensation out of the state treasury not more than $26,000 per year plus an expense allowance of $500 per month. The compensation includes the annual salary of $1200 plus the sum of $24,800 a year out of fines and forfeitures rendered in his district, to be paid monthly out of the fines and forfeitures collected and paid into the state treasury each month. KRS 64.510(2)(c) has special provisions for funding the compensation of commonwealth's attorneys in other districts. However, there is an emphasis upon the excess of fines and forfeitures paid into the state treasury from any district which is excess to the "amount necessary to compensate the commonwealth's attorney of that district to the extent of $26,000."
It is our opinion that the stipulated salary and percentage of fines may be paid to each of the two men serving in that district during a particular year up to the maximum stated in KRS 64.510, provided that the fees, derived from the percentage of fines, actually earned during the period of service are sufficient to fund such compensation.
The controlling point here is that the legislature has framed the compensation around the annual compensation concept, though providing for monthly payments. But the monthly payments are not restricted to monthly maximums. If the payments were restricted to monthly maximums, then each attorney serving as commonwealth's attorney would only receive during each month of actual service compensation up to the maximum monthly sum. This inevitably would mean he could only receive compensation, in terms of a monthly maximum, for the precise period of his service. This finally would mean that the maximum payable for commonwealth's attorneys for the Second District in one year, regardless of the number of men filling that post, would only total $26,000. But KRS 64.510 is not stated in terms of a monthly maximum. Cf. KRS 64.345, relating to county officers, providing a monthly maximum compensation.
We must bear in mind that the limitations put on compensation levels apply to the officer and not to the office. See § 246, Constitution, and Whittenberg v. City of Louisville, 238 Ky. 124, 36 S.W.2d 852 (1931). Section 246, Constitution, is couched in terms of compensation of public "officers", not public "offices." Of course KRS 64.510 is merely a legislative implementation of § 246, under the rubber dollar principle. See Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965).
In summary, Mr. Bryant, and others similarly situated, continue to be entitled to the full annual compensation of their offices, depending of course, on the adequacy of their earned fees to pay it. Here we are speaking of the filling of the office of commonwealth's attorney by more than one person during a particular year.