Request By:
Mr. Scott A. Wilson
Attorney
Kentucky Association of Counties
P.O. Box 345
323 Shelby Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise questions concerning the compensation of justices of the peace serving on fiscal courts.
Question No. 1:
"Can the salary of magistrates be set at the time that such officers take office, if their salary has not previously been set?"
While KRS 64.530(4) provides that the compensation of elected county officers must be set by the first Monday in May in the year of the election and may not during the term be "changed", it is our opinion that so long as the fiscal court has not exhausted its potential to implement the rubber dollar adjustment statute, KRS 64.527, it may adjust such compensation up to the maximum compensation permitted by KRS 64.527. The rubber dollar adjustment principle involves an "adjustment" of compensation, not a "change" thereof, which change is prohibited by KRS 64.530 and §§ 161 and 235 of the Kentucky Constitution. Under the theory of construction of § 246, Constitution, adopted by the old Court of Appeals in Matthews v. Allen, Ky., 360 S.W.2d 135 (1962) and Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965), which § 246 sets forth monetary limits on compensation of state and local constitutional officers, the salaries of such officers are merely being kept abreast of their initial value or purchasing power. Thus the court expressly declares in Hesch that such salary increases do not violate the purpose of the constitutional provisions prohibiting changing compensation during current terms of office. See Dennis v. Rich, Ky., 434 S.W.2d 632 (1968), in which the court held that where the salary fixing power of fiscal court remains unexhausted [providing a salary out of county treasury but within rubber dollar maximum fixation of general assembly (KRS 64.527)] the constitution will not be violated by increasing the salary under such adjustment thereof. Judge Palmore wrote in Sarakatsannis v. Baker,. Ky., 488 S.W.2d 683 (1972) 685 that "while the logic v. Baker, Ky., 488 S.W.2d 683 (1972) v. Baker,. Ky., 488 S.W.2d 683 (1972) 685 that "while the logic of this result [rubber dollar theory as applied to incumbents] may very well be disputed, it now represents a constitutional principle upon which the General Assembly and the affected municipalities have justifiably relied."
Under KRS 64.730 where the fiscal court fails to fix a salary as required by law, the salary paid in the previous administration will govern. However, the rubber dollar theory cuts across and negates this limitational statute, as aforementioned.
Question No. 2:
"What is the allowable compensation for magistrates who sit on the fiscal court?"
We concluded in OAG 77-774, copy enclosed, that under KRS 64.527 the justices of the peace serving on fiscal courts may be paid up to the rubber dollar limit, which in 1978 will be around $18,000 per year. However, we established as a guideline the payment of such salaries based upon the percentage of time they work on county business during a normal business week. In the Pike County opinion [OAG 77-774] it is assumed that the magistrates will put in a full work week each week of the year in the carrying out of the county statutory duties. We concluded that the courts would probably uphold their getting the $18,000 per annum as allowed under KRS 64.527, and if the fiscal court directs it to be paid out of the county treasury.
Where the magistrates work for the county for 2.5 days (1/2 of a 5 day work week) per week each week, then the courts would probably approve a compensation of around $9,000 per year.