Request By:
Mr. James L. Mattingly
Washington County Attorney
108 West Main Street
Springfield, Kentucky 40069
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As the County Attorney for Washington County you understand that it is your responsibility to become actively involved in the full range of duties applicable to the county attorney in performing civil functions for the county. See KRS 69.210. The fiscal court fixed the salary for the county attorney for his work to be performed for the county at $150 per month. You have estimated that on a minimum basis you will be putting in at least 40 hours per month for the county. Thus your question is whether or not it would be legal for the Washington County Fiscal Court to set a salary of $12,000 per year, payable out of the county treasury, for your civil work for the county.
It is our opinion that under the rubber dollar principle the fiscal court can adjust your salary any time such that the income you receive from the state for prosecutorial duties added to what the county provides for you for your civil duties will not exceed the rubber dollar amount for 1978, which is $31,272. See
Matthews v. Allen, Ky., 360 S.W.2d 135 (1962). Also see
Dennis v. Rich, Ky., 434 S.W.2d 632 (1968).
It must be noted that KRS 15.765 makes no specific mention of the salary to be paid by the county. In addition H.B. 31, Section 1, enacted in the regular session of 1978, and which amends KRS 64.530, provides that "the fiscal court may provide a salary for the county attorney. " The use of seeting of a salary by the the term "may" suggests that the setting of a salary by the fiscal court is permissive instead of being mandatory. See KRS 446.010(20), which provides that "may" is permissive unless the context requires otherwise. Section 2 of H.B. 31 provides in part that it was the intent of the General Assembly in the 1976 Extraordinary Session that the county attorney receive his salary from the state while continuing to serve as legal advisor to the county; and that it was the intent of the General Assembly that compensation for such legal services to the county be limited, in all but cases of exceptionally heavy workload for the county, to reimbursement for expenses; and that it is the desire of the General Assembly that any salary which any county attorney shall receive for legal advice to the county shall be uniform during his term of office.
In summary, in our opinion the fiscal court at anytime can adjust upward the salary of the county attorney payable out of the county treasury, so long as the total public income of the county attorney does not exceed the annual sum of $31,272. In addition, in considering the fact that you will be performing the wide range of civil duties for the county as suggested by KRS 69.210, it is our opinion that $150 per month would be grossly inequitable and unfair. It would appear that the fiscal court would want to fix a fair and equitable salary based upon the actual work to be performed for the county.
Regardless of the legislative intent declared in Section 2 of H.B. 31, it is our view that only the courts can determine whether making the county attorney's salary permissive would be unconstitutional or not. Actually, under such permissive intent, a fiscal court could reduce the salary paid by the county to zero. As to whether or not this would violate the due process clause of the constitution [14th Amendment, U.S. Const.] is a matter for the courts. Your payment for services to the state is one thing and the payment for your services to the county is entirely another category. The payment of nothing or nearly nothing for your considerable work for the county would seem to violate the biblical injunction that "the laborer is worthy of his hire."