Request By:
Honorable Raymond J. Ward
Judge, Jeffersontown Police Court
10416 Watterson Trail
Jeffersontown, Kentucky 40299
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
You seek an opinion from this office concerning the following situation. You state that you are the elected judge of the City of Jeffersontown, a city of the fourth class, that your compensation and expenses were fixed previous to your taking office on January 7, 1974. You also state that your deputy police court clerk was sworn in at the same time as you were and that she has been drawing a current salary of $3.62 per hour, that her hours have varied from 30 - 40 per week. You also state that because of the increased workload of the police court, she has worked 40 hours per week and sometimes in excess thereof. It appears from your letter there is a dispute between yourself and the mayor as to who has the responsibility of setting the hours of the deputy clerk of your court and who has the authority to determine the operation of the police court.
As you are well aware, this whole matter will become moot January 1, 1978, when the police court system in Kentucky will expire and the duties of and cases going to that type of court will be assigned to the newly created district court.
However, in the meantime, the following statutes and rules would seem to apply:
KRS 26.590 provides that police judges in fourth class cities shall be their own clerk. However, such judges can appoint a deputy clerk.
KRS 64.580 provides that the legislative body of each city shall fix the compensation of each city officer and employee except the compensation of the members of the city legislative body. Where an officer is paid partly from fees and partly from salary, the legislative body fixes the maximum compensation. ". . . Deputies or assistants of any elective city officer shall be deemed to be city employes for the purpose of this section, . . ." It would seem therefore that the city legislative body has the duty of fixing the salary of the police judge and his deputy clerk, but since the judge has the authority to appoint the deputy, he would have the concomitant authority to set the hours of work and the duties of that deputy clerk.
The police judge's discretion is not unlimited because Civil Rule 77.03 provides in part:
"The office of the clerk with the clerk or deputy in attendance shall be open during business hours on all days except Sundays and legal holidays. . ."
"Business hours" have been construed to mean those hours during which persons in a community generally keep their places open for the transaction of business and do not conflict with the local court rule for closing at noon on Saturday. Casalduct v. Diaz Gonzalez, CCA lst 1941, 117 F.2d 915, cert. denied (1941), 314 U.S. 639, 62 S. Ct. 74, 86 L.Ed 512.
Therefore, based upon the aforesaid authorities, it would seem that the city legislative body sets the salary and the police court judge sets the hours. However, in setting those hours, he must keep the clerk's office open during normal business hours. If that can be done in 30 hours, that would be the minimal time. If it cannot be done in 30 hours, then a longer period of time would be necessary.
One other matter appears inherent in your situation and that is the question of state minimum wage laws dealing with overtime. Unless your deputy court clerk could comply with the regulations defining "executive, professional, administrative or supervisory" (which it is unlikely that she can so comply), she would be entitled to time and a half her regular rate of pay for all hours worked in excess of 40 hours per week. Thus, if she is paid at the rate of $3.62 per hour, she would be entitled to $5.43 per hour for all hours in excess of 40 per week. So, if the city is unable to pay that additional sum of money, you should be careful in not working your clerk in excess of 40 hours per week.