TO BE PUBLISHED

















OAG 93-21


February 25, 1993








Hon. Bruce Ferguson, Commissioner

Department of Local Government

1024 Capital Center Drive

Frankfort, Kentucky 40601-8204



Re: Maximum 1993 Compensation of State, County, and City

Constitutional Officers - Accuracy of Consumer Price

Index Salary Adjustment Computations. Opinion correct-

ing typographical error. AGO Corr. Nos. 93-(O)-162 and

93-(0)-277.

Dear Commissioner Ferguson:

Opinion of the Attorney General (OAG) 93-12, issued to you on February 17, 1993, is hereby withdrawn in order to correct a typographical error. That opinion is replaced by this one. The figure $42,887, which appeared at several points in OAG 93-12, in connection with the maximum salaries of local constitutional officers, should have been $42,877.

By letter of February 1, 1993, you ask that this office issue an opinion verifying the accuracy of computations to be used in adjusting salaries of constitutional officers in relation to changes in the Consumer Price Index. The index is issued by the U. S. Department of Labor, Bureau of Labor Statistics. Our verification for 1992 was given by OAG 92-27.

Pursuant to KRS 15.755(7); 15.765(1) and (3); 64.480(2), (3), and (4); 64.527; and 83A.075, the Department of Local Government annually computes, by the second Friday in February of each year, the maximum compensation payable to constitutional officers listed in those sections. The computation is made under the theory 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).

The Department's computations were based upon the court-established formula application of section 246 of the Kentucky Constitution, setting forth maximum compensation levels for state and local governmental constitutional officers. Under the prescribed formula, salaries paid to constitutional officers are adjusted in accordance with the current purchasing power of the dollar, in relation to salary maximums set in the 1949 amendment of section 246 of Kentucky's Constitution. The adjustments are based upon the "Consumer Price Index" (hereinafter "CPI") maintained by the U. S. Department of Commerce, Bureau of Labor Statistics. A news release issued by the Bureau's Southeast Regional Office at Atlanta, dated January 15, 1993, establishes the CPI as of December, 1992, for "all items" as being 425.2. The CPI for 1949 was 71.4.

We believe the computations shown in your letter of February 1, 1993 are accurate, and accurately reflect the maximum annual compensation allowable by law for the year 1993, for the positions addressed in such letter, given the data supplied.

The following computations are set forth in your letter:

Local Officials - County

Pursuant to the provisions of KRS 64.527, the Department of Local Government is required to compute by the second Friday in February of every year, the maximum annual compensation of the county judge/executives, county clerks, sheriffs, magistrates, county commissioners, coroners, and jailers.

Under the CPI formula adopted by the court in Matthews v. Allen, Ky., 360 S.W.2d 135 (1962), the maximum annual compensation for county officers in 1993 is $42,877, as determined by the following formula:

425.2 (Current CPI in terms of 1949) = X

71.4 $ 7,200

71.4X = 425.2 X $7,200

71.4X = $ 3,061,440

X = $ 42,877 (Rounded)

Local Officials - City

First Class City Mayors

Pursuant to the provisions of KRS 83A.075(1), the Department of Local Government is required to compute by the second Friday in February of every year, the maximum annual compensation of the mayor in cities of the first class. As computed by the Department, the maximum salary for a mayor of a first class city for 1993 is $71,462, as determined by the following formula:

425.2 (Current CPI in terms of 1949) = X

71.4 $12,000

71.4X = 425.2 X $12,000

71.4X = $ 5,102,400

X = $ 71,462 (Rounded)







Mayors of Cities Other Than First Class, Members of Legislative Bodies of Cities of All Classes

Pursuant to KRS 83A.075(1), the Department of Local Government computes the maximum annual compensation for mayors of cities of other than the first class, and of members of legislative bodies of cities of all classes, including cities of the first class. The maximum compensation for these officers for 1993 is $42,877, as determined by the following formula:

425.2 (Current CPI in terms of 1949) = X

71.4 $ 7,200

71.4X = 425.2 X $7,200

71.4X = $ 3,061,440

X = $ 42,877 (Rounded)

State Constitutional Officers

Section 246 of the Constitution of Kentucky sets a maximum compensation of $12,000 for the Lieutenant Governor, Attorney General, Commissioner of Agriculture, Secretary of State, State Treasurer, Auditor of Public Accounts, and Clerk of the Supreme Court of Kentucky. Pursuant to KRS 64.480(2), these officers must be paid the maximum permissible compensation each year.

As computed by the Department of Local Government, the maximum possible annual compensation to the constitutional officers listed above for 1993 is $71,462, as determined by the following computation:

425.2 (Current CPI in terms of 1949) = X

71.4 $12,000

71.4X = 425.2 X $12,000

71.4X = $ 5,102,400

X = $ 71,462 (Rounded)

Governor

The Department of Local Government has computed the maximum compensation of the Governor for 1993 as $84,059, on the basis indicated below.

Pursuant to the provisions of KRS 64.480(4), the Department of Local Government is required to compute, by the second Friday in February of every year beginning in 1985, an adjusted salary of the Governor. As provided by the statute, the Governor's salary is determined by multiplying the base compensation of $60,000 by the increase in the CPI during the period from January 1, 1984, to the beginning of the then-current calender year, here 1993. The CPI announced in January, 1984, was 303.5, and that announced in January, 1993, 425.2. Accordingly, the Department determined the maximum salary of the Governor for 1993 by the following formula:

425.2 (Current CPI in terms of 1949) = X

303.5 $60,000

303.5X = 425.2 X $60,000

303.5X = $ 25,512,000

X = $ 84,059 (Rounded)

County Attorney

The county attorney, although a county officer under section 99 of Kentucky's Constitution, and KRS 69.210, has been given a statewide function in his prosecutorial role pursuant to KRS 15.730. KRS 15.765(3) provides, in substance and in part, that the maximum annual salary of a county attorney shall be $12,000 pursuant to section 246 of Kentucky's Constitution, as such figure is adjusted consistent with the CPI for the preceding year, using 1949 as the base year, by the second Friday in February of every year. The figure determined upon such basis is the combined maximum the county attorney may receive from both the state, for prosecutorial services, and from the county as its civil advisor. This is in keeping with the ruling in Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133 (1928), that the constitutional compensation limit applies whether services are rendered in one position, or more than one.

The Department of Local Government has computed the maximum annual compensation for the county attorney (KRS 15.765(3) based upon the following formula:

425.2 (Current CPI in terms of 1949) = X

71.4 $12,000

71.4X = 425.2 X $12,000

71.4X = $ 5,102,400

X = $ 71,462 (Rounded)

KRS 15.765(1) provides, in effect, that the maximum compensation of a county attorney for prosecutorial duties shall be based upon applying the CPI adjustment to a salary of $7,200. Accordingly the Department has computed the maximum allowable compensation of a county attorney for 1993, for prosecutorial duties, as $42,877, based upon the following formula:

425.2 (Current CPI in terms of 1949) = X

71.4 $ 7,200

71.4X = 425.2 X $7,200

71.4X = $ 3,061,440

X = $ 42,877 (Rounded)

Commonwealth's Attorney

Pursuant to KRS 15.755(7), the maximum annual compensation possible for full-time Commonwealth's Attorneys for 1993 is $71,462 which is based upon the following formula:

425.2 (Current CPI in terms of 1949) = X

71.4 $12,000

71.4X = 425.2 X $12,000

71.4X = $ 5,102,400

X = $ 71,462 (Rounded)

Part-Time Commonwealth's Attorney

OAG 85-54 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. That amount, as indicated above, is $42,877 for 1993.

We have reviewed the Department's computation of maximum salaries of certain public officers, and the bases of those computations as reflected in your letter of February 1, 1993, in view of related legal considerations. We believe the maximum compensation levels computed for 1993 for the positions indicated in your letter are accurate and proper from a legal perspective, based upon the data supplied.

As noted in your letter, application of the maximums shown herein for state constitutional officers may be affected by state budgetary restrictions passed by the 1992 Kentucky General Assembly (See the executive branch budget, Acts, 1992, ch. 462, part IV, KRS ch. 47, Appendix A, part IV).

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL





Gerard R. Gerhard

Assistant Attorney General

(502) 564-7600



GRG:par

c: Mr. Junie Tutterow

Department of Local Government