This is an official copy of the following document.

OAG 96-35

September 11, 1996

Subject: Whether fiscal court may reduce circuit clerk's salary as law librarian

Requested by: Jo Ann Newsom, Caldwell Circuit Clerk

Written by: Ross T. Carter

Syllabus: Fiscal court may not reduce circuit clerk's salary as law librarian during the clerk's term

OAGs cited: OAG 75-573, 80-517, 82-177

Statutes construed: KRS 172.110

Opinion of the Attorney General

The Caldwell Circuit Clerk took office in January 1995. In addition to her salary as circuit clerk, and as required by KRS 172.110, she received a monthly salary for her duties as county law librarian. That salary was $75 per month, the same salary her predecessor had received. In July 1995, the fiscal court reduced the salary to $50 per month. The clerk inquired of the Administrative Office of the Courts and the county attorney regarding the legality of this reduction and, having received conflicting opinions, asks us to provide an opinion to resolve the matter.

The general principle of law implicated in this question is the constitutional prohibition against reducing the compensation of an officer during his term. Ky Const �� 161, 235. Without question this prohibition applies to the clerk's primary salary as clerk of the circuit and district courts. The precise question before us is whether the prohibition also applies to the salary that a circuit court clerk receives as county law librarian.

Serving as county law librarian has been a statutory duty of circuit clerks since 1930. The statute, KRS 172.110, has remained unchanged since 1954 and provides:

(1) The circuit clerk shall be ex officio librarian of the county law library, and he shall see that county and state officials have access to the library at reasonable hours each day except Sunday and holidays. He shall receive a salary of not less than fifty dollars ($50.00) nor more than one hundred dollars ($100) per month for his services as librarian.

(2) He shall keep the library rooms in order, preserve, arrange and index all the books, charts, maps and furniture belonging in the library, and see that no books or other things are taken from the library rooms without a receipt being given therefor.

(3) He shall receipt for all books, maps and furniture placed in the library. The receipts shall be given to the state law librarian and preserved in his office at Frankfort.

(4) He shall take an inventory each December of all the books, maps, charts or other property in the library belonging to the state and report the inventory under oath to the state law librarian before January 1 of the following year.

This statute plainly imposes a duty on the circuit clerk. We have said that the duty has such affinity or connection with the office of circuit clerk that the librarian duty cannot be delegated to a person other than a deputy clerk, and the salary as librarian must be added to the salary as clerk when determining whether the officer has reached the constitutional maximum salary limit. OAG 75-573, 80-517, 82-177.

Although there are no reported cases dealing with a reduction in a clerk's salary as law librarian, the inverse situation was presented in Greenup County v Spears, 259 Ky 114, 81 SW 2d 905 (1935). In that case a circuit clerk, who was in office when the statute was enacted imposing the law librarian duty, requested payment of the law librarian salary during his term. The Court of Appeals held that he was not entitled to the extra salary. Payment of the salary would violate sections 161 and 235 because it would amount to increasing the officer's salary during his term. Even though the legislature imposed additional duties on the officer, he could not receive payment for them under the rule expressed in Coleman v Hurst, 226 Ky 501, 11 SW 2d 133 (1928), where the court stated, “The question is always whether the General Assembly is acting within its authority in changing the duties of the office by imposing additional work on the office itself. If that is the effect of an act increasing duties of public office, the compensation may not be increased during the term for the performance of such duties.” Coleman v Hurst, 11 SW 2d at 222.

Any change in compensation during an officer's term, whether an increase or decrease, is unconstitutional. Sparks v Boggs, Ky, 339 SW 2d 480 (1960). If it is illegal to increase a clerk's salary as law librarian during his term, as the court held in Greenup County v Spears, it is illegal to decrease it. We therefore conclude, based on the facts presented to us, that the fiscal court of Caldwell County illegally reduced the circuit clerk's salary as county law librarian. The clerk is entitled to recover from the county the deficiency in her salary. Her acceptance of the lower salary does not estop her from claiming the full salary to which she is entitled. Olive Hill v Craig, 267 Ky 38, 101 SW 2d 198 (1937).

A. B. Chandler III

Attorney General

Ross T. Carter

Assistant Attorney General