Request By:
Hon. Fred E. Fischer
Jeffersontown City Attorney
10416 Watterson Trail
Jeffersontown, Kentucky 40299
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of July 19 in which you relate that the city council has raised a question concerning the compensation of its nonelective officers, more specifically the city clerk, city treasurer, city tax commissioner and chief of police. You further relate that the ordinance appointing each of the individuals to the referred to offices sets forth their compensation in a fixed amount. Also in the past, it has been the policy of the city to provide hospital insurance for these officers and employees in addition to their specific compensation. Under the circumstances you raise the following question:
"I would appreciate your opinion with respect to whether or not in the future the City of Jeffersontown may pay its City officers in accordance with the compensation set forth in the Ordinance appointing them and in addition thereto provide hospitalization coverage. "
To begin with, the compensation for all nonelective city officers as well as employees is required to be fixed at a specific amount by ordinance pursuant to KRS 83A.070(2)(3). Such compensation, however, is not supposed to include the cost incurred for these individuals for hospitalization coverage presumably under KRS 79.080. As a matter of fact, this office has taken the position in OAG 75-470, copy attached, that contributions by the city for group hospital insurance plans adopted for its nonelective officers and employees do not constitute extra compensation. This opinion also points out as we have held previously in OAG 72-107 that although there is no legal objection to the inclusion of municipal officers in the insurance coverage, they must pay the insurance premium themselves since the provisions of KRS 79.080 refer solely to the coverage of city employees with municipal funds.
With respect to what constitutes a nonelective municipal officer, we refer you to the requirement of KRS 83A.080(1) to the effect that all such offices must be specifically created by ordinance in the manner prescribed in this subsection. Otherwise, the position would not constitute a nonelective office. The only exception is the office of city clerk which is required to be established under the terms of KRS 83A.085.
We might also add with respect to the compensation of nonelective city officers that there is no constitutional or statutory limit on the amount of compensation that can be fixed for a particular office or when it can be increased or decreased, since such officers are not constitutional officers and are therefore not restricted under Section 161 of the Constitution. See OAG 75-318, copy attached, which refers to the landmark case on this subject, namely
Board of Education of Graves Co. v. DeWeese, Ky. 343 S.W.2d 598 (1961). However, cost of living increases are now permitted elected city officials such as the mayor and members of the legislative body by virtue of a 1984 Act, Chapter 50.
Under the circumstances and as pointed out above, the city must pay its nonelective officers in accordance with the compensation set forth by ordinance which, of course, can be changed at any time by amendment. However, such compensation that has been fixed for such office should not include the amount contributed by the city for hospitalization insurance under a group program established pursuant to KRS 79.080 particularly since such payment is unauthorized in the first place.