[1993/oagheade.htm]

OAG 93-42

May 14, 1993

Fred Waddle

Taylor County Judge/Executive

Taylor County Courthouse, Suite 4

203 Court Street

Campbellsville, Kentucky 42718

Dear Mr. Waddle:

You have asked whether KRS 74.730 applies to the setting of a jailer's salary by the fiscal court. The statute in question reads:

Where any public body is required by KRS 64.480 to 64.740 to fix the compensation of an officer, and of his deputies and assistants, for terms commencing after June 30, 1950, not later than the first Monday in May in the year in which such officers are elected, and the body fails to do so, the compensation of the officer, and of his deputies and assistants, shall be the same as for the preceding term.

Since this statute merely sets forth the consequences of the failure of a public body to comply with KRS 64.480 to 64.740, your question may be rephrased as follows: Does KRS 64.480 to 64.740 require the fiscal court to set a jailer's salary not later than the first Monday in May?

The only statute in the range of KRS 64.480 to 64.740 that could possibly affect this question is KRS 64.530. On its face that statute is not altogether clear regarding its applicability to jailers. Subsection 1 says that “the fiscal court of each county shall fix the compensation of every county officer and employee except the officers named in KRS 64.535 and the county attorney and jailer.” That statement appears to remove the jailer entirely from the operation of the statute. But subsection 4 says,

In the case of county officers elected by popular vote . . . the monthly compensation of the officer and of his deputies and assistants shall be fixed by the fiscal court . . . not later than the first Monday in May . . . .

We must therefore determine which subsection prevails — subsection 1, which explicitly excludes jailers, or subsection 4, which applies to elected county officers.

KRS 64.530 was amended by chapter 385, section 22, of the 1982 Acts of the General Assembly. In that amendment the words “and jailer” were added to subsection 1. The wording of subsection 4 that we have quoted above has existed unchanged since 1974. Acts 1974, c. 60, �2. Thus the legislature is presumed to have been aware of the provisions of subsection 4 when it added the exemption for jailers in subsection 1. Haven Point Enterprises, Inc., v. United Kentucky Bank, Inc., Ky., 690 S.W.2d 393 (1985). In light of this fact the only reasonable way to reconcile the two sections is to give priority to the more recent amendment. Troxell v. Trammell, Ky., 730 S.W.2d 525 (1987).

In addition, we note that the specific reference in subsection 1 should be given precedence over the general language in subsection 4. Rainey v. Mills, Ky.App., 733 S.W.2d 756 (1987).

We therefore conclude that KRS 64.530 does not apply to the setting of a jailer's salary by the fiscal court, and consequently KRS 64.730 does not apply either.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General