Request By:
Ms. Betty M. Wilson
602 Legal Arts Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written us that on January 1, 1978, with the implementation of the Judicial Article, the official court reporters of Kentucky will be faced with several problems. You are an official court reporter.
Under the new judicial system the official court reporters will become state employees. A present statutory treatment of court reporters is covered in KRS 28.410 through 28.510. However those statutes, which deal primarily with the compensation of court reporters, will stand repealed as of January 2, 1978 [Acts of 1976 (Ex. Sess.), Ch. 14, § 491]. Funding of reporter salaries by county and urban county government is provided by those statutes. However, beginning January 2, 1978, the court reporters will be paid, for their court work, exclusively out of the state treasury. See the State Budget, H.B. 30, 1976 Acts (Ex. Sess.) Ch. 27, p. 240.
As Judge McDonald has pointed out, a court reporter's working conditions are much different than any other state employee. He says that over the long haul the hours equalize out. Sometimes they put in 20 hours a week, sometimes 70 or 80. There is historically no regularity about court session hours even in courts of continuous session. Judge McDonald also points out that in Jefferson Circuit the court reporters are not furnished any office space. All they have are the table and chair in the courtroom. This necessitates either a private office or home office for their transcription work. In the past, in other counties reporters were furnished a room, supplies and equipment, but at lower salaries.
Question No. 1:
"Can the Circuit Court Judge, in certifying time sheets for the official reporter, certify that the official reporter was available to the Court for 37 1/2 hours per week?"
KRS 30A.310 reads:
"The chief justice, through the administrative office of the courts, may authorize the appointment or employment by the chief judge such secretaries, court reporters, interpreters, court administrators, friends of the court, and other personnel demonstrated as being necessary to the proper and efficient operation of the Court of Justice or any court which is a component thereof. Persons so authorized to be employed or appointed shall be compensated and classified according to the judicial personnel system."
We are of the opinion that, considering the unique court working conditions, the legislature intended to vest in the Chief Justice of the Supreme Court of Kentucky, through the administrative office of the courts, the power to promulgate personnel policies relating to the judicial personnel system, including the compensation and classification of such judicial personnel, the administrative office of the courts being the Chief Justice's agent of administration. Following this central line of legislative intent, it follows that the hours requirement applicable to state employees generally has no application to judicial personnel, including court reporters. See KRS 18.140(1)(k), 18.170(2), 18.190, 18.210, and 101 KAR 1:140. The regulation just cited provides that the number of hours of full time employees in state offices in Frankfort shall be uniform for all positions unless specified otherwise by the appointing authority or the statutes.
Beyond any doubt, the Chief Justice has placed a similar construction on KRS 30A.310, since he has just issued, as adopted by the judicial department, a set of administrative procedures of the court of justice, part III, relating to personnel policies. While the court rules generally adopt the laws and rules which govern nontenured employment in the Executive Branch of Kentucky State Government, a basic administrative flexibility is specifically retained. Section 6.01 of the Rules provides that business office hours will vary in accordance with specific offices and work assignments, although the normal work week is 37.5 hours. This indicates that 37.5 hours will be the norm where it can be applied. But it is not practical to apply it to court reporters. This latter conclusion is buttressed by the fact that the Supreme Court adopted on December 7, 1977, a certification form relating to monthly time and attendance reports for court reporters. It reads: "I certify that (Court reporter) has performed all work assignments and has met all availability requirements made by Circuit Court during the month of , 19. (Signed) (Circuit Judge)." This approved form indicates to us that the court reporters are not held to the rigid 37.5 hour requirement as such. The certificate is not framed universally or inflexibly around a specific hours computation.
Question No. 2:
"Can the official reporter, during the 37 1/2 hour work week, transcribe court proceedings for which she will be paid by counsel of record, or the Commonwealth of Kentucky in pauper cases?"
It is our opinion that the court reporter may be properly paid for transcripts (where counsel of record pays or the state pays for an indigent in a criminal case), which transcripts are worked up by the reporter outside of the courtroom session even though it occurs during a normal 37.5 hour work week calculation. Here we assume that the reporter has been dismissed for a period of time during the particular day by the circuit judge, and thus the transcript is made by the reporter during such "off" time. In this situation we see no duplication of payment for identical services. KRS 28.440, relating to Jefferson County Court reporters, which provided for such transcript payments, stands repealed as of January 2, 1978 (1976 Acts [Ex. Sess.] Ch. 14, § 491).
Question No. 3:
"Can a court stenographer serve as the official reporter and in their spare time hire out to state agencies and/or private attorneys for the purpose of taking hearings or depositions, or would this be a conflict prohibited under Kentucky law?"
The answer is that the statutes contain no prohibition against free-lancing or moonlighting. KRS 30A.310 and the personnel rules of the judicial department contain no such prohibition. The basic requirement imposed upon the official court reporters is that they must perform all work assignments and meet all availability requirements made by the circuit court each month. In simple language, if they meet all of their court requirements, they are free to free-lance.