Request By:
Mr. Robert W. Miller
Carter County Attorney
Courthouse
Grayson, Kentucky 41143-1296
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request a formal opinion as to whether or not a fiscal court may decrease the pay of a deputy county judge executive without regard to the services rendered and the actual work performed by him.
Upon the appointment of a deputy county judge executive by the county judge executive pursuant to KRS 67.711, the fiscal court has the positive duty to provide a reasonable salary for the deputy, payable out of the county treasury, as a properly budgeted item under KRS Chapter 68, based upon his actual work schedule.
The deputy county judge executive is not a constitutional officer. He is a statutorily appointed officer. Thus §§ 161 and 235 of the Kentucky Constitution, which prohibit a "change in compensation", apply only to constitutional officers. The rubber dollar concept applies only to constitutional officers.
Conmonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965).
Technically, the fiscal court may lower the salary of a deputy county judge executive. However, the lowering of the deputy's salary would have to be effected under the yardstick of a "reasonable salary" for services actually performed. Any salary lowering not based upon the "reasonable salary" concept would on its face appear to be arbitrary and would be unconstitutional in terms of § 2, Kentucky Constitution, which prohibits arbitrary action. The court, in
Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1964) 258, held that § 2 expresses a concept broad enough to embrace both due process and equal protection of laws, both fundamental fairness and impartiality.
There is no claim by the magistrates, as we understand it, that there is an insufficiency of money in the budget to pay the deputy a reasonable salary.
The raw political fact is that under KRS 67.711 the deputy county judge executive is appointed by the county judge executive, without the consent of fiscal court. Further, the deputy serves at the pleasure of the county judge executive, not the fiscal court. However, a fiscal court cannot indirectly, by lowering the salary of the deputy to an unconscionable and unconstitutional level, bring about the departure of a particular deputy from office. The General Assembly enacted KRS 67.711; and it is indeed the law of Kentucky in that area. The General Assembly in the field of legislation has all power except where restricted by the Kentucky or federal constitutions.