Request By:
Mr. Ed Gulley
Democratic Election Commissioner
813 Butler Street
Carrollton, Kentucky 41008
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of recent date in which you relate that in April, 1976 the Fiscal Court of Carroll County established the compensation for election commissioners at $24 per day. Since that time, the commissioners apparently have not been paid for meetings involving a period of thirty-two (32) months. Two weeks ago, and presumably following the November election, the fiscal court proceeded to enter an order reducing the compensation from $24 to $15 per day, retroactive to April, 1976. The question is raised as to whether or not the court can refuse to pay the commission members for the 32 months service, which presumedly extends through the November election, at the initial rate.
KRS 117.035(2) provides, in effect, that the compensation of members of the county board of elections shall be set at not less than $15 per day for each day that the board meets.
There is no question that the fiscal court can from time to time alter the compensation of members of the county board of elections [the only restriction being that it cannot go below $15 per meeting as expressed in the above referred to statute], since members of the commission are not constitutionally named officers whose compensation cannot be changed during their term. On the other hand, however, the fact that the fiscal court initially fixed the compensation at $24 per meeting, which remained unchanged from 1976 through the 1978 election, would prevent it from entering a subsequent order reducing the compensation already earned by the commissioners by making the order retroactive, regardless of whether or not a sufficient amount was budgeted.
With respect to the reduction of salaries, the general rule is clear that a later law reducing a salary cannot impair the right to the salary already earned. McQuillin, Mun. Corps., Vol. 4, § 12.196a. The fact that the county may not have budgeted an amount sufficient to pay the compensation of the commissioners for the period in question would not prevent the court from paying the claim presented by the commission members from either its general fund surplus or by the transfer of funds from some other budgeted account that contained a surplus. See KRS 68.290. If there is not sufficient money in either the present general fund or from a budgeted fund that can be transferred, the county can budget the necessary funds for the next fiscal year.
Under the circumstances and from the facts presented, we believe that the county is obligated to pay the commissioners for the period in question at the rate of $24 per meeting. On the other hand, for any subsequent meeting following the reduction of compensation to $15 per day, said commissioners would only be entitled to $15.