Request By:
Honorable Charles Gibbs, Mayor
City of Catlettsburg
City Building
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of February 8 in which you relate that in 1957 the city council enacted an ordinance establishing the salary of the city attorney at § 125 per month, plus 10% of all fines collected through the police court as well as 10% of all delinquent taxes collected by him, and there has been no action on the part of the council to change this ordinance until now whereby his salary is increased to $400 per month. You further relate that the city attorney is elected by the people, presumedly under the authority found under KRS 69.560. Under the circumstances, you raise the following two questions:
Question 1. Was it legal in 1957 to pass an Ordinance to give a salary plus commission to the City Attorney?
Question 2. Can a salary be raised during the term of an elected official? If so, under what procedure or circumstances?
The fact that the city attorney is an elected official, even though he is not a constitutional officer, would bring him within the terms of KRS 64.580 which requires his compensation, along with the other elected city officers, to be fixed not later than the first Monday in May in the year in which he is elected, which would have been the first Monday in May of 1977. This statute at the same time prohibits any change in compensation during the officer's term.
Before we get into the question of the change in compensation, the answer to your initial question as to the city's right to fix his compensation by both a salary plus commissions would be in the affirmative, at the time of the passage of the 1957 ordinance pursuant to KRS 69.570 and the case of City of Harlan v. Jones, 309 Ky. 797, 219 S.W.2d 37 (1949). Reference also OAG 76-740. As you know, of course, the city attorney no longer has any prosecutorial duties and KRS 69.570 has been repealed. Thus, he is no longer entitled to any percentage of the fines and forfeitures. As a consequence, his compensation is reduced to that extent.
The question concerning the right to increase the city attorney's compensation at this time is more difficult to answer. The requirements of KRS 64.580 are basically mandatory, which means that normally an elected official's salary cannot be changed during his term except by the state legislature, which is explained in OAG 75-395, copy of which we are enclosing. However, his remaining salary for serving as city attorney [which is $125 per month] raises a legal question as to whether or not it would constitute adequate salary, and this point is also discussed in OAG 75-395 and in the case of Wells v. Roberts, 448 S.W.2d 658 (1970), reviewed in detail in said opinion. You will note, however, the conclusion reached in said opinion to the effect that the $100 per month paid to the mayor was upheld as being adequate compensation which could not be increased during his term.
The Wells case, however, appeared to leave the door open for future litigation on the question of what is or is not adequate compensation and this, together with the fact that the city attorney has lost a considerable portion of his compensation by virtue of his loss of criminal prosecutorial duties, would appear to constitute good grounds for the court to declare that his remaining salary for his duties as city attorney would not, under the circumstances, be considered adequate and could be increased subsequent to the May deadline or at any time during his present term. However, until the court so concludes, we must take the same position as held in OAG 75-395 to the effect that the present compensation is adequate and cannot be changed during his term.
The salaries of the other city officials listed, that of mayor and councilman, cannot be changed at this time in view of KRS 64.580 discussed previously. The question concerning a change in the city treasurer's compensation is dependent upon whether or not he is appointed by the council or elected by the people under the terms of KRS 92.060. If he is appointed, his compensation can be changed at any time; on the other hand if elected, he too is restricted in so far as a change in compensation pursuant to KRS 64.580. For your information, we are also enclosing a copy of OAG 75-318 which may be of interest to you.