February 21, 1995

*Subject:* 1995 Cost of Living Adjustment to Allowable
Maximum Salaries of Certain Constitutional Officers

*Written by:* Gerard Gerhard

*Requested by:* Hon. Bruce Ferguson, Commissioner,
Department of Local Government

*Syllabus: *Department of Local Government appears to
have accurately computed allowable cost of living adjustment for
1995, of salaries of certain constitutional officers, in view of
changes in the consumer price index.

*OAGs cited: *85-54, 94-7

*Statutes cited: *15.730; 15.765(1); 15.765(3); 15.755;
15.755(7); 64.480 (2); 64.480(3); 64.480(4); 64.527; 69.210;
83A.075(1)

*Constitutional provisions cited:* 99; 246

**OPINION OF THE ATTORNEY GENERAL **

The following question, in substance, has been presented:

Has the Department of Local Government properly calculated the allowable adjustment of certain officials salaries, given changes in the cost of living as determined based upon the Consumer Price Index Report of the U. S. Department of Labor, for December 1994?

Based upon a review of calculations and supporting information provided, the Department of Local Government appears to have accurately computed the 1995 cost of living adjustment to the allowable maximum salaries of certain elected officers, given changes in the consumer price index. Discussion follows.

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).

For 1995, the Department's computations were set forth in the Department's letter of February 3, 1995, requesting verification of its calculations.

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 11, 1995, establishes the CPI as of December, 1994, for "all items" as being 448.4. The CPI for 1949 was 71.4.

The following computations are set forth in the Department's 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 1995 is $45,216.81, as
determined by the following formula:

448.4/71.4 (Current CPI in terms of 1949) = *X */ $ 7,200

71.4X = 448.4 X $7,200

71.4X = $ 3,228,480

X = $ 45,216.81 (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 1995 is $75,361.34, as determined by the following formula:

448.4 / 71.4 (Current CPI in terms of 1949) = *X */
$12,000

71.4X = 448.4 X $12,000

71.4X = $ 5,380,800

X = $ 75,361.34 (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 1995 is $45,216.81, as determined by the following formula:

448.4 / 71.4 (Current CPI in terms of 1949) = *X */ $
7,200

71.4X = 448.4 X $7,200

71.4X = $ 3,228,480

X = $ 45,216.81 (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 1995 is $75,361.34, as determined by the following computation:

448.4 / 71.4 (Current CPI in terms of 1949) = *X */
$12,000

71.4X = 448.4 X $12,000

71.4X = $ 5,380,800

X = $ 75,361.34 (Rounded)

*Governor*

The Department of Local Government has computed the maximum compensation of the Governor for 1995 as $88,645.80, 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 1995. The CPI announced in January, 1984, was 303.5, and that announced in January, 1995, 448.4. Accordingly, the Department determined the maximum salary of the Governor for 1995 by the following formula:

448.4 / 305.5 (Current CPI in terms of 1949) = *X */
$60,000

303.5X = 448.4 X $60,000

303.5X = $ 26,904,000

X = $ 88,645.80 (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 in accordance with KRS 15.765(3) for 1995, as $75,361.34, based upon the following formula:

448.4 / 71.4 (Current CPI in terms of 1949) = *X */
$12,000

71.4X = 448.4 X $12,000

71.4X = $ 5,380,800

X = $ 75,361.34 (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 1995, *for* *prosecutorial
duties*, as $45,216.81, based upon the following formula:

448.4 / 71.4 (Current CPI in terms of 1949) = *X* / $
7,200

71.4X = 448.4 X $7,200

71.4X = $ 3,228,480

X = $ 45,216.81 (Rounded)

*Commonwealth's Attorney*

Pursuant to KRS 15.755(7), the maximum annual compensation
possible for *full-time* Commonwealth's Attorneys for 1995
is $75,361.34 which is based upon the following formula:

448.4 / 71.4 (Current CPI in terms of 1949) = *X */
$12,000

71.4X = 448.4 X $12,000

71.4X = $ 5,380,800

X = $ 75,361.34 (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 $45,216.81 for 1995.

*Conclusion*

We have reviewed the Department's computation, for 1995, of the cost of living adjustment of the allowable maximum salaries of certain constitutional officers, and the bases of those computations as reflected in the letter of February 3, 1995, in view of related legal considerations. We believe the maximum compensation levels computed for 1995, for the positions indicated in the letter, are accurate and proper from a legal perspective based upon the data supplied for our review.

By way of background, the computation verification by this office in 1994 was given by OAG 94-7.

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General