Request By:
Mr. Vic Hellard, Jr.
Director
Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
KRS 61.784 directs that the membership of the Financial Disclosure Commission include a member of the General Assembly. It further directs that the member of the General Assembly be compensated as set forth in KRS 7.090(2), which provides for a compensation of $65 per diem plus expenses. Under KRS 61.784(3), the non-public officer or employee members are compensated at the rate of $100 per day and expenses.
However, H.B. 200, 1982 Session, amends KRS 61.070, and provides in part that a member of the General Assembly serving on a board or commission shall receive the same compensation in the same manner as any other member of the board or commission. That act became effective July 15, 1982.
We concluded in OAG 82-367 that H.B. 200 governs over KRS 61.784(3), since it is the later legislation.
Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949). Thus, the member of the legislature serving on the Financial Disclosure Review Commission must, on and after July 15, 1982, receive the same pay received by the other members of the Commission.
In addition, it was our opinion in OAG 82-367 that H.B. 200 is to be applied prospectively only, citing KRS 446.080(3). H.B. 200 contains no express provision for retroactive application.
Lastly, we concluded in OAG 82-367 that the General Assembly members of the Financial Disclosure Review Commission must be paid from funds of the Legislative Research Commission.
Since KRS 61.784(3) explicitly provides that the non-public members of the Commission shall be paid one hundred dollars ($100) per day for meetings and does not apply that to the General Assembly member (who, under other law is paid $65 per day), you ask whether KRS 61.784(3), for that reason, is unconstitutional?
The fact that KRS 61.784(3) provided for a different amount of pay for the same function, prior to July 15, 1982, is not of itself arbitrary if the difference in pay was based upon some reasonable distinction. Cf. § 2,
Kentucky Constitution, and Saylor v. Metcalf, 310 Ky. 137, 220 S.W.2d 99 (1949). While § 59, Kentucky Constitution, prohibits special legislation, the court said in
Jefferson County v. Cole, 204 Ky. 27, 263 S.W. 1114 (1924), that the "Constitution does not forbid classification that is based on natural and reasonable distinctions." (Emphasis added). It was stressed in Jefferson County v. Cole that:
"Hence laws which apply to and operate uniformly upon all members of any class of persons, places, or things, requiring legislation peculiar to themselves in the matters covered by the laws in question, are general and not special or local." (Emphasis added).
Here KRS 61.784(3) and 7.090(2) related uniformly to all members of a class, namely, members of the General Assembly who are appointed to the Financial Disclosure Review Commission. The other members belonged to the classification of non-public officers or employees. Thus the classification is based upon a natural and reasonable distinction. The total compensation picture of members of the General Assembly relates uniformly indeed to a particular classification, i.e., members of the General Assembly.
In the recent case of
Jefferson County Police Merit Bd. v. Bilyeu, Ky., 634 S.W.2d 414 (1982), Justice Stephens, for the court, wrote this at page 416:
"This Court has considered the validity of a plethora of statutes under Sections 59 and 60 (Constitution), recognizing the strong presumption of constitutionality afforded to an enactment of the General Assembly."
Thus, we conclude that the statute, prior to July 15, 1982, was constitutional.
Your second remaining question reads:
If this provision [KRS 61.784] is in fact unconstitutional, would this be a basis for compensating the affected members of the General Assembly retroactively to make up the difference in pay?
Since we have concluded the statute was constitutional, your second question is academic.