[1993/oagheade.htm]

OAG 93-75

October 28, 1993

Cicely Jaracz Lambert

General Counsel

Administrative Office of the Courts

100 Millcreek Park

Frankfort, Kentucky 40601-1759

Re: Whether Circuit Court Clerk's Salary as Ex Officio County Law Librarian May be Credited as Compensation for Purposes of the Clerk's Retirement Account with the Kentucky Employees Retirement System.

Dear Ms. Lambert:

By letter of September 21, 1993, you ask whether the circuit court clerk's salary as ex officio librarian of the county law library may be credited to the circuit court clerk's retirement account in the Kentucky Employees Retirement System.

In our view, salary paid to a circuit court clerk by a county fiscal court, for such officer's services as ex officio county law librarian, cannot be lawfully credited in relation to a clerk's Kentucky Employees Retirement System account, as such salary is not "creditable compensation" within that system. Discussion follows.

Background

The question you have presented arises because a circuit court clerk receives salary monies from two sources that are covered by different retirement systems.

The principal source of a circuit court clerk's salary is from the state, for the clerk's services for the judicial system, which are provided on a full-time basis. Constitution of Kentucky sections 97, and 114. KRS 30A.010, KRS 64.055. The salary from such source is clearly "creditable compensa- tion" (KRS 61.510(13)) for purposes of a circuit court clerk's participation in the Kentucky Employees Retirement System (KERS) (KRS 61.510, et seq.).

A circuit court clerk is also paid, however, a small salary pursuant to KRS 172.110(1), by the county fiscal court, from county funds, for the clerk's services as ex officio county law librarian (hereinafter "county law librarian"). See for example, OAG 82-177 and OAG 83-75.

Salary paid by a county, to a county employee, is generally under the purview of the County Employees Retirement System (CERS). "Creditable compensation" for purposes of that system (CERS) is defined by reading KRS 78.510(6), (7), and (13) in concert. As relevant here, such compensation is that paid to a "regular full-time employee of a participating county." The services of the circuit court clerk, as county law librarian, are so limited that the clerk's services for the county in such connection could only be said to be rendered on a "part-time" basis. It follows that the salary paid to a circuit court clerk by a county for the clerk's services as county law librarian cannot be lawfully credited in relation to the CERS. KRS 78.510(6), (7), (13).

"Creditable Compensation" Question

This leaves the question of whether the salary paid to a circuit court clerk by a county, for the clerk's services as county law librarian, might be credited for purposes of the clerk's Kentucky Employees Retirement System account.

As the KERS is a creature of statute, what salary may be credited for purposes of such system is determined by statute. The question is whether given compensation is "creditable compensation," as such phrase is defined by statute in connection with that system.

If the salary paid to a circuit court clerk, as ex officio county law librarian by the fiscal court or county (KRS 172.110(1)), is "creditable compensation" within the purview of the KERS, the salary may be credited to a circuit court clerk's KERS account.

KRS 61.510(13), in part pertinent to the question you have posed, provides:

'Creditable compensation' means all salary, wages, tips to the extent the tips are reported for income tax purposes, and fees paid to the employee as a result of services performed for the employer . . . .

(Emphasis added.)

In Barnes v. Barnes, Ky., 241 S.W.2d 993, 994 (1951) (copy enclosed), the Court, in addressing liability for social security contributions related to the Circuit Court Clerk's salary for services as county law librarian indicated:

Concerning compensation received as county law librarian, KRS 172.110, . . . we do not think the state is liable for the social security contributions which are based upon the compensation. These services are not rendered in his capacity as circuit court clerk.

(Emphasis added.)

"Employer," for purposes of the KERS, is defined, in part pertinent here, in KRS 61.510(6) as:

'Employer' means a department or any authority of a department having the power to appoint or select an employee in the department . . . .

"Department," in turn, again in relation to the KERS, is defined in KRS 61.510(3), in part pertinent here, as:

'Department' means any state department or board or agency participating in the system in accordance with appropriate executive order, as provided in KRS 61.520.

"System" as used in KRS 61.520, as provided by KRS 61.510(1), means the Kentucky Employees Retirement System.

Applying the reasoning in Barnes, supra, the services of a circuit court clerk as ex officio county law librarian are not rendered in his capacity as circuit clerk, but are services rendered in his separate capacity, specifically provided for by statute (e.g., KRS 172.110), as ex officio county law librarian. The "employer" in such circumstance is the county fiscal court, as distinguished from a state department or agency participating in the KERS.

Summary

Based upon the reasoning indicated above, in our view the services of a circuit court clerk, as ex officio county law librarian, are not services performed for an employer participating in the KERS. It follows that the salary received by a circuit court clerk, as ex officio county law librarian, is not "creditable compensation" (KRS 61.510(13)) in relation to the KERS. Accordingly, the salary of a circuit court clerk, for services performed for the fiscal court, as county law librarian, cannot, under current statutory provisions, be lawfully credited in relation to a KERS account.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General