OAG 96-32

August 6, 1996

Subject: Compensation of county clerks

Requested by: J. Michael Libs, President, William I. May, Jr., Executive Director, Kentucky County Clerks' Association

Written by: Ross Carter

Syllabus: Governor may not, by executive order, declare that county clerks are officers whose duties are coextensive with the Commonwealth for the purposes of constitutional salary computations

Statutes construed: KRS 64.527

Opinion of the Attorney General

The questions before us concern the effect of Executive Order 95-1462, signed on December 11, 1995, by Governor Brereton C. Jones. The order says:

Whereas, the office of county clerk entail[s] duties that are co-extensive with the Commonwealth of Kentucky;

Now, therefore, I, Brereton C. Jones, Governor of the Commonwealth of Kentucky, do hereby order and declare the following:

The county clerks of Kentucky are officers whose duties are co-extensive with the Commonwealth of Kentucky under section 246 of the Kentucky Constitution.

Section 246 of the Constitution of Kentucky establishes salary maximums for various public officers. The highest maximum is for mayors of cities of the first class, appellate judges, and “officers whose jurisdiction or duties are coextensive with the Commonwealth.” That salary is set in the constitution at $12,000; after adjusting for inflation, the current salary maximum is approximately $77,000. For all other public officers except circuit judges, the maximum set in the constitution is $7,200, or approximately $46,000 after adjusting for inflation.

It is an axiom, as well as a constitutional command, that the powers of government are separated into discrete branches. In general it is the duty of the General Assembly to declare public policy by enacting laws, Kentucky State Fair Board v Fowler, 310 Ky 607, 221 SW 2d 435 (1949), and it is the duty of the Governor to take care that those laws enacted by the General Assembly are faithfully executed. Ky Const � 81. One branch of government may not usurp the powers of another branch. Ky Const � 28. The Governor cannot legislate, but rather must enforce legislation duly enacted.

KRS 64.527 provides:

In order to equate the compensation of county judges/executive, county clerks, sheriffs, jailers, justices of the peace, county commissioners, and coroners with the purchasing power of the dollar, the Department of Local Government shall compute by the second Friday in February of every year the annual increase or decrease in the consumer price index of the preceding year by using 1949 as the base year in accordance with Section 246 of the Constitution of Kentucky which provides that the above elected officials shall be paid at a rate no greater than seven thousand two hundred dollars ($7,200) per annum.

Here is a plain expression of public policy declaring that county clerks are subject to the $7200 salary maximum applicable to “all other public officers” rather than the $12,000 maximum applicable to “officers whose jurisdiction or duties are coextensive with the Commonwealth.” Executive Order 95-1462 directly contradicts this statute.

We have no hesitation in concluding that the executive order is entirely void as an attempt to modify a statute by executive fiat. While the Governor may issue executive orders pursuant to the powers granted in sections 76 through 81 of the Constitution of Kentucky or specifically delegated by the General Assembly — powers relating to such matters as appointments, pardons, and reorganizations — no known grant of power to the Governor authorizes him to declare public policy in contravention of policy established by the General Assembly. Executive Order 95-1462 is as devoid of effect as if it had never been signed.

A. B. Chandler III

Attorney General

Ross T. Carter

Assistant Attorney General