Could Kentucky's governor raise county clerks' salary ceiling by declaring their duties statewide?

Plain-English summary

In 1996, Kentucky's Attorney General concluded that a governor's executive order declaring county clerks to be officers with statewide duties was void for salary-limit purposes. Section 246 of the Kentucky Constitution then set a higher salary maximum for officers whose jurisdiction or duties were coextensive with the Commonwealth. But KRS 64.527 expressly placed county clerks under the lower category used for other listed local officers.

The AG said the governor could execute laws but could not rewrite the legislature's salary classification by order. Executive Order 95-1462 directly contradicted KRS 64.527 and, in the AG's words, was “as devoid of effect as if it had never been signed.”

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

County clerks and pay administrators

The opinion applied the salary category in KRS 64.527 to county clerks despite the governor's contrary declaration. It discussed inflation adjustments to the constitutional dollar figures, but its legal point was which category governed under the statute, not a permanent dollar amount.

Governor and legislature

The AG distinguished executive authority to enforce laws from legislative authority to set public policy. The governor's order purported to change the classification already expressed in KRS 64.527, and the opinion found no grant of power to do that.

Common questions

Did the executive order make county clerks statewide officers for salary calculations?

No. The AG concluded that the order was void because it conflicted with the statute's express treatment of county clerks.

What salary category did the 1996 opinion apply?

It applied the Section 246 category for “all other public officers,” as KRS 64.527 then directed, rather than the higher category for officers with statewide jurisdiction or duties.

Could the governor change that statutory category by executive order?

The AG said no. An executive order could not modify the legislature's rule in KRS 64.527.

Background and statutory framework

The Kentucky County Clerks' Association asked about Executive Order 95-1462, signed in 1995. The AG compared its statewide-duty declaration with Section 246's salary categories and KRS 64.527's express list of local officers. It cited separation-of-powers principles and Kentucky State Fair Board v Fowler on the legislature's role in declaring public policy.

Citations and references

• KRS 64.527: inflation adjustment and salary classification for county clerks and other listed officers.
• Section 246 of the Kentucky Constitution: officer salary maximums discussed in the opinion.
• Kentucky State Fair Board v Fowler, 310 Ky 607, 221 SW 2d 435 (1949): legislative authority to declare policy.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG96-032.htm

Original opinion text

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