Request By:
Ms. Elsie G. Miller
Official Court Reporter
39th Judicial District
P.O. Box 25
Campton, Kentucky 41301
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter setting forth numerous questions pertaining to official court reporters in connection with the implementation of the new judicial system.
You maintain that official court reporters derive a substantial amount of their compensation from transcript fees paid by litigants. This is in addition to the salaries they receive from the state. You further allege that the Administrative Office of the Courts has determined that court reporters are permitted to pay social security and retirement on only that portion of their earnings received from the state. These reporters must pay on the basis of self employment for any compensation they receive for trial transcripts and they are not entitled to state retirement benefits on those portions of their compensation not received from the state.
Prior to the adoption of the new judicial system, you maintain that official court reporters had the employer's portion of social security and deductions for the retirement system computed on the basis of their total salary (amount received from the county government plus amounts received from transcript fees and per diem expenses). We have been advised by the state agency for social security within the Department for Human Resources that prior to the implementation of the new judicial system the employer's share of social security was based on the total compensation of the official court reporter, including fees received from transcripts, so long as the money was earned by the reporter as a result of work done in her capacity as official court reporter. Even back then, however, money from free lance work was not considered as part of the official court reporter's salary for the purposes of computing the employer's share of social security.
In addition, you state that the Administrative Office of the Courts (AOC) has set down guidelines to be followed by court reporters in all phases of their work. That office dictates when reporters must work, their vacations and sick leave, the form of the transcripts, including such matters as the size of the paper used, number of typed lines per sheet and the charges made for such transcripts.
Your first question is as follows:
"Does AOC have legal authority to change social security and retirement laws and regulations? "
While we do not know what specific statutes and regulations you are referring to, the AOC has not actually "changed" the social security and retirement laws. The AOC has apparently reconsidered the former procedures applicable to the deductions of official court reporters and the state's contributions pertaining thereto. Although the statutes have not been changed by the AOC the portion of earnings subject to the state's computations for social security and retirement have been changed.
The state's computations are now based only upon the actual wages paid by the state to the official court reporters plus what the state pays to the official court reporters in connection with transcript fees in pauper cases. What the official court reporter earns as a result of selling copies of official transcripts to litigants is now considered as private, non-state income and not included by the state as salary upon which it figures its share of social security and retirement payments.
In connection with "Social Security for Public Employes" (KRS 61.410 to 61.500), the definitions applicable thereto are set forth in KRS 61.420. "Wages" means all remuneration for employment. "Employment" means any service performed by an employe in the employ of the Commonwealth, a political subdivision, or an interstate instrumentality, for such employer. "Employe" means any person in the service of the Commonwealth, a political subdivision or an interstate instrumentality.
Regardless of the state's statutory provisions, in those matters involving the application and interpretation of social security provisions you will probably have to contact the appropriate persons in the Federal Social Security Administration or present the matter to a federal court. In
M.F.A. Mutual Insurance Company v. United States, 314 F.Supp. 590 (W.D. Missouri, C.D., 1970), the Court said, "In determining whether an individual is an employe for federal employment tax purposes, federal, rather than state, law is applicable." In determining whether an employer-employe relationship exists for purposes of federal social security and employment taxes and withholding of federal income taxes, no one factor is controlling as each case turns on its own particular facts and the entire circumstances must be viewed. The single most important factor, however, is the degree of control exercised which is defined as the right to control the persons performing the service, not only as to the result sought to be accomplished but also as to the details and means by which the result is achieved. See
Barrett v. Phinney, 278 F.Supp. 65 (S.D. Texas, 1968) and
General Wayne Inn v. Rothensies, 47 F.Supp. 391 (E.D.Pa., 1942).
In connection with deductions for retirement purposes, the question to be resolved is whether the official court reporter is considered a state employe or engaged in private employment in regard to money earned from the sale of transcripts to litigants. KRS 61.510 (13), a provision contained in the sections dealing with the Kentucky Employes Retirement System, states in part that, "'Creditable compensation' means all salary, wages and fees paid to the employe as a result of services performed for the employer . . . ." As you can see, the provision does not specifically refer to salary, wages, and fees paid by the employer but to such amounts paid to the employe as a result of services performed for the employer. It appears that the intent is to include all sources of compensation (salary, wages and fees) received by the employe regardless of from whom it is received so long as the work performed is done for the employer. The official court reporter, of course, reports the proceedings as she is required to do.
In regard to court reporters and transcripts and the authority exercised over same by the AOC, we direct your attention to the Memorandum from William E. Davis, dated January 10, 1978, concerning "Personnel Rules for Court Reporters, " numerical paragraph 10, Transcription and Fees, which states:
"Upon request, the official reporter shall furnish a typewritten copy or copies of the record or any part thereof. The transcript shall be prepared as directed by the Rule of the Supreme Court.
A fee of $1.20 per original page and 60 per copy may be charged to the requesting party or to the state in pauper cases."
Thus, in our opinion, after examining the provisions of KRS 61.510 (13) and the rules of the AOC pertaining to official court reporters and transcripts, the fees earned by the official court reporters from selling copies of transcripts to litigants are "creditable compensation" for purposes of the state retirement provisions. The official court reporters report the proceedings as they are required to do by the AOC and, pursuant to the rules of the AOC, they make them available to litigants, prepared in a manner directed by the AOC and at pries within maximum limits established by the AOC. This is, in our opinion, a service performed for the employer and fees received as a result thereof constitute "creditable compensation" for state retirement purposes.
Your second question, asking whether the AOC may permit official court reporters to qualify for social security and state retirement on only a portion of their compensation, has been answered already.
Your third question concerns the legal authority of the AOC to dictate how a transcript is to be typed and how much a court reporter may charge for her services.
The official court reporters are now state employes and members of the judicial personnel system, subject to all personnel policies applicable to other employes of the judicial personnel system. Section 116 of the Kentucky Constitution provides in part that the Supreme Court shall have the power to prescribe rules governing its appellate jurisdiction, rules for the appointment of commissioners and other court personnel, and rules of practice and procedure for the Court of Justice. KRS 27A.050 provides in part for the creation of the Administrative Office of the Courts to serve as the staff for the chief justice in executing the policies and programs of the Court of Justice. KRS 30A.310 states in part that the chief justice, through the administrative office of the courts, may authorize the appointment or employment of such secretaries, court reporters and other personnel necessary to the proper and efficient operation of the Court of Justice or any court which is a component thereof. Finally, see Rule 1.050 of the Rules of the Supreme Court, dealing with the Administrative Office of the Courts, which is directed to act as the administrative and fiscal agency of the Court of Justice.
We think the AOC has sufficient authority to promulgate rules covering such matters as how transcripts are typed and what a reporter may charge for transcripts. It is our understanding that the AOC is in the process of preparing an Official Manual for Court Reporters. See also CR 7.02 (Rules of Civil Procedure) providing in part that all pleadings, and papers, other than exhibits and printed briefs, filed in courts shall be typewritten in black ink on unglazed white paper 8-1/2 by 11 inches in dimension and shall be double-spaced and clearly readable; provided, however, that legal-size paper will be accepted until January 1, 1979.
We need not respond to your fourth question concerning the self employment aspect of trial transcripts as that matter has already been dealt with above.
Your fifth question asks whether the AOC or anyone else has a right to permit attorneys and others to reproduce transcripts prepared by the official court reporters which are filed with the court clerk.
In response to your question we direct your attention to the recent case of Farley, Public Advocate, etc., et al, Ex Parte, decided by the Supreme Court of Kentucky on July 25, 1978 (mandate issued August 15, 1978) where the court said in part that the custody and control of the records generated by the courts in the course of their work are inseparable from the judicial function itself, and are not subject to statutory regulation in the form of an Open Records Law.
See also KRS 26A.200 providing that court records are the property of the Court of Justice:
"(1) All records, as defined in KRS 171.410(1), which are made by or generated for or received by any other court or agency or officer responsible to such court created under the present Constitution, or a former Constitution, whether pursuant to statute, regulation, court rule, or local ordinance shall be the property of the Court of Justice and are subject to the control of the Supreme Court.
(2) The Supreme Court shall determine which records were generated, made, or received by or for any court."
Since you are not referring to any specific rule but to a general situation, we suggest you take the matter up with the Supreme Court and the Administrative Office of the Courts.