Request By:
Mr. Phillip Lewis
Leslie County Attorney
Campbell-Farmer Building
P.O. Box 1049
Hyden, Kentucky 41749
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
As County Attorney of Leslie County, You raise a question about your compensation and request our opinion.
Here are the facts and questions you submitted:
"The Leslie Fiscal Court on approximately December 16, 1981, set my salary as county attorney at the maximum which could be paid at that time. Realizing that the salary should have been set prior to the first Monday in May the fiscal court according to them, pursuant to instructions from the Department of Finance, attempted to set the salary in December and by nunc pro tunc order making them effective as though set prior to the first Monday in May. Thereafter in January of 1982, the new Leslie Fiscal Court voted to pay the county attorney the salary as previously set by the outgoing fiscal court. Considering the unified prosecutorial system which as I understand it allows and requires each county attorney to negotiate with the fiscal court for payment of his civil legal services was the order by the existing fiscal court legal and binding. If the existing fiscal court did not have the authority under the act to set the county attorney's pay then was the preceding order valid?
"Provided that neither of the above referred orders are valid, assume that the last order setting the county attorney's salary provided for the county attorney to be paid the maximum salary. Further assume that even though the last order on the books provided for the county attorney to be paid the maximum salary that the budget did not include provisions to pay the maximum salary. Is the fiscal court required to pay the salary if the last order on the books in an election year set prior to the first Monday in May even though the budget as initially set up, without amendment, only provides for payment of a lesser amount?
"Provided that under any of the foregoing facts the county attorney is entitled to the maximum salary does the Department of Finance have the authority to unilaterally without the approval of the fiscal court or any other court cut the salary. If the Department of Finance has such authority, from where does this authority come?"
The fiscal court has no authority to fix your salary except the salary to be paid to you out of the county treasury for your services as the civil adviser and civil attorney of the county, as set out in KRS 69.210. They have nothing to do with your salary as a state prosecutor in the district court, pursuant to KRS 15.725.
Thus the compensation as prosecutor and as civil attorney for the county must be added together to apply the rule of constitutional limitation of salary in § 246, Constitution.
In OAG 82-80, copy enclosed, we pointed out that the total potential maximum salary for county attorneys in 1982 is $47,311.00 (covering the two salaries) . While the potential maximum salary as prosecuting attorney is $28,387.00 for 1982, the legislature in a budget act of 1980 provided in effect that for 1982 the county attorney could be paid a salary for his state prosecutorial duties of up to $26,049.54. Thus since the overall potential maximum for 1982 for the county attorney is $47,311.00, the fiscal court can pay to you as civil county attorney in 1982 up to $21,261.46. That is $47,311.00 less $26,049.54 leaves $21,261.46.
It is up to the fiscal court as to your civil salary, except that for 1982 it cannot exceed $21,261.46. Since your salary as civil county attorney is subject to the index concept (C.P.I), there is no problem concerning a change in compensation. Your salary can be adjusted upward to reflect the index principle, so long as the above maximum is observed. However, the fiscal court can never reduce your salary from one level to another during term, since that is expressly prohibited by § 161 of the Kentucky Constitution. See
Matthews v. Allen, Ky., 360 S.W.2d 135 (1962). Reducing your salary is not rubber dollar. Increasing your salary under the C.P.I. formula is rubber dollar and constitutes under § 246 of the Constitution an adjustment from the original 1949 dollar.
Of course, in order to pay your county civil salary, the fiscal court must scrupulously observe the dictates of KRS Chapter 68. This means that your salary must be authorized as a proper budgeted item for which current county revenues are sufficient to pay. KRS 68.300 expressly prohibits expenditures in excess of budget appropriations. Thus the payment of your salary can only legally and actually be paid as a properly budgeted item, even though the fiscal court observes its proper area of power (salary fixation for county civil attorney) and observes the rubber dollar concept.
However, once the fiscal court has properly set your salary, as above detailed as to maximum amount, the inability of the county to pay you all of the salary at this time would not constitutionally prevent your later recovery of the balance owed under the appropriate statute of limitation. It has been held that the incurrence of debt for essential governmental purposes is valid, even though the debt cannot be funded from current revenues, as required by § 157, Kentucky Constitution. See Fulton County Fiscal Court v. Southern Bell Tel. & T. co., 285 Ky. 17, 146 S.W.2d 15 (1940).
The state local finance officer has certain supervisory powers relating to the county budget. See KRS chapters 66 and 68. Mr. Bob Purdom, the State Local Finance Officer, has indicated to us that members of his staff have come into your county to inspect, investigate, and supervise the administration of accounts and financial operations of your county and to compel compliance with the Kentucky budget law. These authorities and duties are laid out in KRS 68.210 and 68.350. Of course the state local finance officer has no authority to "cut" or reduce any validly fixed salaries, as a county debt. But he does have the authority to monitor and arrange the payment schedules of such obligations until the budget is on a sound and going basis.