Request By:
Mr. Paul Stilton
Floyd County Constable
Betsy Layne, Kentucky 41605
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising two questions concerning county government, the first of which asks whether a one hundred dollars a month expense check is considered a salary.
If you are referring to the expense allowance of magistrates, KRS 64.258 provides that the fiscal court of any county may pay to each justice of the peace within the county a sum not to exceed $100 per month in order to assist with the expenses of his office. The statute also states that this sum shall not be considered as salary within the meaning of KRS 64.255 but that particular section has been repealed. In addition, the amounts paid to each magistrate within the county shall be equal and no payments shall be paid unless the county possesses sufficient excess funds in its treasury to permit such payments to all of the justices.
In connection with expense payments generally we direct your attention to
Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577 (1948). The Court said that in the absence of specific constitutional or statutory prohibitions, the allowance by the General Assembly of expenses incurred by officers in the discharge of the official duties of an office is neither salary, compensation nor an emolument of their office within the purview of the constitutional prohibitions against a change in compensation during the term. Thus, in our opinion, the expense allowances paid to magistrates pursuant to KRS 64.258 do not constitute a salary or other compensation and are proper so long as all provisions of the statute are satisfied and the sums are reasonable in terms of the actual expenses incurred. See OAG 75-241, copy enclosed. Further-more, as a general statement, in absence of specific statutory as a general statement, in absence of specific statutory or constitutional prohibitions, expense allowances paid to officers in the performance of their official duties do not constitute salary or compensation.
Your second question asks whether theformer sheriff is permitted to serve as a police officer or detective in Kentucky within the first four years after leaving the sheriff's office.
We find no legal objection to the sheriff being appointed as a member of a county or city police force following the expiration of his term of office as sheriff. While the sheriff cannot succeed himself or serve as a deputy sheriff during the succeeding term (Section 99 of the Kentucky Constitution), his appointment to a city or county police force does not violate any constitutional prohibition or involve the sheriff's office. See OAG 77-94, copy enclosed.