Request By:
Mr. Clint R. Collins
135 South Main Street
Monticello, Kentucky 42633
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of October 21 in which you raise the following questions:
"Is it legal for candidates to state what salary they will accept in campaigning for county or city offices? For example: is it legal to state they will serve as mayor or county judge/executive for a specific salary somewhat below the statutory maximum?"
The above questions involve a possible violation of KRS 121.055 which prohibits a candidate for nomination or election from making expenditures or entering into agreements or contracts with persons in consideration of their support or financial support in regard to his election. This statute was construed in a recent case that went to the Supreme Court of the United States styled Brown v. Hartlage, 456 U.S. 45, 71 L. Ed. 2d 732, 102 S. Ct. 1523 (1982). The question betore the court involved Commissioner Brown's campaign for election during which he offered to cut his salary if elected. However, soon after he discovered that he may have violated the referred to statute he retracted the statement. Nevertheless, suit was brought against him resulting in the state court's holding that he had violated KRS 121.055. However, the Supreme Court of the United States reversed the state court's judgment and held that Brown was entitled to the office as he did not offer some private payment or donation in exchange for voter support and that his statement could only be construed as an expression of his intention to exercise public power in a manner he believed might be acceptable to some class of citizens. To hold otherwise, the court said, would violate his 1st Amendment rights, that of freedom of speech, particularly where he had made the statement in good faith but retracted it at a later date. The court further declared that the state's fear that voters might make an ill-advised choice does not provide the state with a compelling justification for imiting speech as it is simply not a function of government to select which issues are worth discussing or debating. Quoting more specifically from the case is the following statement:
"The Commonwealth of Kentucky has provided that a candidate for public office forfeits his electoral victory if he errs in announcing that he will, if elected, serve at a reduced salary. As Kentucky courts have made clear in this case, a candidate's liability under § 121.055 for such an error is absolute: His election victory must be voided even if the offending statement was made in good faith and quickly repudiated. The chilling effect of such absolute accountability for factual misstatements in the course of political debate is incompatible with the atmosphere of free discussion contemplated by the First Amendment in the context of political campaigns. "
As previously pointed out, the Supreme Court apparently based its decision to a degree on the fact that Brown had made the statement in good faith and promptly retracted it after finding out about the possible statutory violation and in this respect the court said that under these circustances to nullify the petitioner's election victory would be inconsistent with the atmosphere of a robust political debate protected by the 1st Amendment.
The Supreme Court decision clearly indicates that a general statement by a candidate made in good faith that he will accept a salary less than that fixed by law, would not violate KRS 121.055 which the court did not declare invalid per se. As a matter of fact, the court declared that demonstrable falsehoods are not protected by the 1st Amendment as are mere erroneous statements which are inevitable in free debate.
However, a word of caution is indicated by the fact that stress was placed upon the statement being made in good faith without the knowledge that the salary for the office was fixed pursuant to a specific statute which must therefore be accepted by the officeholder. The fixing of the salary of mayor before his election is required under KRS 83A.070. Such salary cannot be changed during the term. The salary for the county judge/executive is fixed pursuant to KRS 64.530 before his election also, but may be adjusted yearly as based on the cost of living index under KRS 64.527. Under such circumstances, this office has consistently taken the position that the officeholder must accept the salary fixed by law but may dispose of it in any manner he desires once he has accepted it.