Request By:
Mr. T. M. Davis
Morgan County Attorney
Box 2
West Liberty, Kentucky 41472
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The county judge/executive has a problem arising out of the letter addressed to county officials concerning the rubber dollar maximum for 1980. See KRS 64.527. That 1980 rubber dollar maximum is $23,184 annually, which applies to the county judge/executives.
You ask whether the county judge/executive can receive the sum of $23,184 [on a monthly breakdown basis] effective immediately. His present annual salary is $17,500.
The county judge/executive is placed under the annual rubber dollar adjustment by KRS 64.527, which is an implementation of the rubber dollar cases construing Sec. 246 of the Kentucky Constitution. See Matthews v. Allen, Ky., 360 S.W.2d 135 (1962).
The role of the Finance Department in KRS 64.527 has not been fully understood by local government. The function of the Finance Department is to merely indicate to the local governments the exact rubber dollar maximum for each year, in terms of the consumer price index formula, as dealt with in Matthews v. Allen, above. We pointed out in OAG 80-164, copy enclosed, that a fee officer, if he makes the maximum in earned fees in a particular year, is of course automatically entitled to the maximum, without the approval of the fiscal court.
However, the county judge/executive is not a fee officer. Thus his compensation must necessarily take the form of a salary, paid out of the county treasury, to be authorized by the fiscal court. See KRS 64.530 and 64.720. This finally means that the fiscal court, in fixing a salary for the county judge/executive, has two definite limitations: (1) they must pay him at least the minimum provided by statute, and (2) they cannot exceed the maximum rubber dollar amount. It follows that any amount from the minimum amount to the maximum rubber dollar amount lies within the sound discretion of the fiscal court, acting as a body.
Under KRS 67.705, the minimum salary for the county judge/executive is a sum not less than 60% of the maximum rubber dollar amount for that year. In 1980, 60% of $23,184 would be $13,910.40. The statute states that the county judge/executive in office as of January 2, 1978, shall receive no less than the total public annual compensation received by whoever was county judge during 1976. It is our view that the county judge/executive is entitled to the greater of the two minimums. The statute also provides that no county judge can be paid in excess of six percent (6%) of the county's total annual general fund receipts, including federal revenue sharing moneys.
In summary, the county judge/executive is not automatically entitled to the annual maximum rubber dollar compensation. The fiscal court must set his salary, subject to the applicable minimum and the rubber dollar maximum. The fiscal court has a discretion as to his salary in the range from the minimum level to the maximum level.
You ask whether the county judge/executive's salary, when adjusted for 1980, can be retroactive. The answer is yes, to January 1, 1980, since the fiscal court is dealing with an "annual compensation" concept, even though it is broken down to monthly payments.