Request By:
Mr. Junie M. Tutterow
Manager
County Fee Systems & Municipal Assistance
Department of Local Government
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Nathan Goldman, Assistant Attorney General
You request the formal opinion of this Office concerning the accuracy of your computation of the maximum compensation of state, county and city constitutional officers. You have enclosed a copy of the 1985 Consumer Price Index issued by the United States Bureau of Labor Statistics.
Pursuant to KRS 15.755(7), 15.765(3), 64.480(2), 64.480(4), 64.527 and 83A.075, you are required to annually compute by the second Friday in February the maximum compensation payable to state and local constitutional officers under the "rubber dollar" theory (utilizing the Consumer Price Index) adopted by the court in
Matthews v. Allen, Ky., 360 S.W.2d 135 (1962) and
Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965).
Since we are dealing with the court established formula application of Section 246 of the Kentucky Constitution, which sets forth maximum compensation levels for state and local governmental constitutional officers, we shall indicate the formula for the following levels of officials.
LOCAL OFFICIALS
The $7,200 monetary level of Section 246 of the Constitution applies to county judge/executives, county clerks, sheriffs, justices of the peace, county commissioners and coroners pursuant to KRS 64.527. KRS 83A.075(1) requires your office to compute by the second Friday in February of each year the maximum annual compensation payable to the mayors and legislative body members.
The implementation of the indexed principle will depend upon the fiscal court setting salaries payable out of the county treasury and the operation of the fee system for fee officers. Thus the fee officer can apply fees earned by himself or herself, without any action on the part of the fiscal court, up to the maximum payable for the particular year under the indexed system. Note KRS 441.245, concerning the fiscal court's setting the jailer's salary, but not to exceed the rubber dollar maximum pursuant to KRS 64.527. Under KRS 83A.075(2), the legislative body of the city shall set the compensation of the city officers mentioned in accordance with KRS 83A.070 at a rate no greater than the Consumer Price Index maximum.
Under the Consumer Price Index formula the maximum annual compensation possible for local constitutional officers in 1986 would be as follows. It is based upon the information, obtained from the United States Department of Commerce, that the 1949 Consumer Price Index was 71.4, while the Consumer Price Index for the end of 1985 was 327.4.
327.4 / 71.4 (current C.P.I. in terms of 1949) = X / $7,200 71.4X =327.4 X $7,20071.4X =$ 2,357,280X =$ 33,015 (rounded)
All of the above local officials are under the $7,200 level of Section 246 of the Kentucky Constitution except for the mayor in cities of the first class, which level is $12,000. The computation for that mayor is as follows:
327.4 / 71.4 (current C.P.I. in terms of 1949) = X / $12,000 71.4X =$3,928,800X =$ 55,025 (rounded)
It is our opinion that the maximum compensation for such local constitutional officers for 1986 is accurately computed to be $33,015, except that for the mayor of a city of the first class the maximum is $55,025.
STATE CONSTITUTIONAL OFFICERS
This includes the Lieutenant Governor, Attorney General, Superintendent of Public Instruction, Commissioner of Agriculture, Secretary of State, State Treasurer, Auditor of Public Accounts and Clerk of the Supreme Court of Kentucky. Note that under KRS 64.480(2) the officers listed above must be paid the maximum permissible compensation each year.
Under the Consumer Price Index formula, the maximum annual compensation for the aforementioned state constitutional officers in 1986 would be as follows:
327.4 / 71.4 (current C.P.I. terms of 1949) = X / $12,000 71.4X =$3,928,800X =$ 55,025
The 1984 General Assembly passed FB 1984-86 Final Enacted Budget Memorandum Record (hereinafter 1984 Budget) which restricted state constitutional officers to a two percent (2%) salary increase in FY 1984-85 and a three percent (3%) increase in FY 1985-86. The 1984 Budget is being litigated in the case of Commonwealth ex rel. Armstrong v. Collins et al., currently pending before the Kentucky Supreme Court. The Attorney General is contending that the budget language, which purports to modify or change existing nonappropriations statutes, is unconstitutional. Nevertheless, we will set out your computations based on the budget language.
The salary for state constitutional officers for FY 1984-85 which represented a two percent (2%) increase over FY 1983-84 was $52,028.16. Therefore, the salary for state constitutional officers for 1985-86, based on the above discussed budget language, is $53,589 representing a three percent (3%) increase over FY 1984-85, which was computed as follows:
1985 State Salary X 103% = 1986 State Salary
$52,028.16 X 103% = $53,589
Your computations, based on the budget language, are correct. However, once issued, the Supreme Court's opinion in the Collins, supra, case may necessitate a modification of this conclusion.
Governor
KRS 64.480(4) requires your office to compute by the second Friday in February of every year, beginning in 1985, an adjusted salary of the Governor by multiplying sixty thousand dollars ($60,000) by the increase in the Consumer Price Index during the period from January 1, 1984 to the then current calendar year. The increase in the Consumer Price Index from January 1, 1984 to 1985 was four percent (4%). Therefore, the adjusted salary for the Governor for 1985 would have been $60,000 X 104% = $62,400. However, the 1984 Budget, mentioned above, restricted salary increments for state officers and employees to two percent (2%) for FY 1985-86. The Governor's salary for 1985 was; based on the 1984 Budget, $61,200.
Therefore, the Governor's salary for FY 1985-86 is the FY 1984-85 salary of $61,200, plus three percent (3%) which equals $63,036, which was computed as follows:
Governor's 1985 Salary X 103% = Governor's 1986 Salary
$61,200 X 103% = $63,036.
Your computations are correct.
COUNTY ATTORNEY
The county attorney, although a county constitutional officer under Section 99 of the Kentucky Constitution, and KRS 69.210, has been given a state-wide function in his prosecutorial role. KRS 15.765(3) establishes the indexing of the original $12,000 maximum in Section 246 of the Constitution as the maximum compensation possible for the county attorney, regardless of what he receives from the fiscal court as county attorney, the county's civil advisor, and from the state as a state prosecutor. That point was decided as early as 1928 in
Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133, in which the court ruled that the constitutional limit of compensation for constitutional officers applies whether such services are rendered in one position or more than one.
Pursuant to KRS 15.765(3), the maximum annual compensation possible for the county attorney under the Consumer Price Index formula would be $55,025, which is computed as follows:
327.4 / 71.4 (current C.P.I. in terms of 1949) = X / $12,000 71.4X =$3,928,800X =$ 55,025
Your computations are correct.
KRS 15.765(1) provides in effect for the indexing of the $7200 level for his prosecutorial duties. The compensation which the county attorney was to receive for performing his prosecutorial function in 1986 would have been as follows:
327.4 / 71.4 (current C.P.I. in terms of 1949) = X / $7,200 71.4X =$2,357,280X =$ 33,015
However, the General Assembly, in enacting the 1984 Budget, as stated above, restricted state salary increments to two percent (2%) for FY 1984-85, and three percent (3%) for FY 1985-86. The 1985 state annual compensation paid to the county attorney for his prosecutorial duties was computed to be $29,294.01.
Therefore, the actual state compensation to be paid the county attorney during 1986, pursuant to the budget language, would be as follows:
1985 State Salary X 103% = 1986 State Salary
$29,294.01 X 103% = $30,172.83
Your computations are correct.
COMMONWEALTH'S ATTORNEY
Full Time
Pursuant to KRS 15.755(7), the maximum annual compensation possible for the commonwealth's attorney under the Consumer Price Index formula would have been $55,025 which is computed as follows:
327.4 / 71.4 (current C.P.I. in terms of 1949) X / $12,000 71.4X =$3,928,800X =$ 55,025
However, the General Assembly in enacting the 1984 Budget, as stated above, restricted state salary increments to two percent (2%) for FY 1984-85, and three percent (3%) for FY 1985-86. The 1985 state annual compensation paid to the commonwealth's attorney was computed to be $48,823.36.
Therefore, the maximum annual compensation for the commonwealth's attorney during 1986 would be $50,288.06 which is computed as follows:
1985 maximum compensation X 103% = 1986 compensation
$48,823.36 X 103% = $50,288.06
Part Time
OAG 84-54 interpreted the provisions of KRS 15.755 to indicate that part-time commonwealth's attorneys are to be paid a salary equal to the maximum state share for the county attorney. As stated above, that salary is $30,172.83 for 1986.
Your calculations for commonwealth's attorneys are correct.
It is our opinion that all of your computations are correct. It must be borne in mind that Section 246 of the Kentucky Constitution is not self-executing. It requires specific implementation by the General Assembly by way of appropriate statutory enactment. Those implementing statutes have been dealt with above.