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GARRARD COUNTY, IQ!`)NTUCKY; JOHN APPELLANTS
W"ILSON; JOE LEAVELL; DOAN ADKINSON; »

RONNIE LANE; FRED SIMPSON; AND

BETTY HOLTZCLAW

 

ON REVIEW FROM THE COURT OF APPEALS .
V. NO. 2014-CA-00018_7-MR
GARRARD CIRCU`[T COURT NO. 12-CI-00132

KEVIN MIDDLETON ` ' . APPELLEE

dPINION OF THE CQURT BY CHIEF JUS'I‘ICE MINTON
AFFIRmNe

Garra.rd Colmty is one of those Kentucky counties that has an elected
county jailer but does not operate a county jail. The Garrard Fiscal Court voted
before the jailer’s election to`iix the amount of the jailer’s salary for the new
term at an amount lower than that set for the incumbent jailer. After the
election, the newly elected jailer sued the fiscal court, alleging that it was v
statutorily powerless to reduce his pay. The trial court ruled that the fiscal
court had the` authority to increase or reduce the amount of the jailer’s salary
before the commencement of the jailer’s new term in office. Thus, the trial court

ruled that the Garrard Fiscal Court had acted properly in reducing the jailer’s

pay before the commencement of his term. But the Court of Appeals reversed
the trial court, holding instead that the General Assembly has specifically
enacted a statute that prohibits fiscal courts in counties without jails from
reducing the pay of their elected jailer. On discretionary review, we are

constrained to agree with the holding of the Court of Appeals. Thus, we a.tiirm.

I. FACTUAL.AND PROCEDURAL BACKGROUND.
` The Kentucky Constitution mandates that every county elect a jailer,1

but it does not require every county to operate a jail. The General Assembly
extends to county,iscal courts the discretion to set the county jailer’s salary
within certain parameters established in the overall statutory framework.

Garrard County is one of the Kentucky counties that does not operate a
jail. In 2006, Kenny 'I`uggle was re-elected for his third term as Garra`.rd
County Jailer. During his tenure, his salary gradually increased over the years
he spent in ohice. 'I‘uggle resigned his post in 2008. At that time he was .
earning $30,547.97 per year. The county found someone to till the two
remaining years on Tu`ggle’s unexpired term. Kevin Middleton approached the
county judge-executive expressing his interest in the vacant position.
Eventually, Middleton agreed to fill the time remaining on Tuggle’s term as
jailer in exchange for $20,000 per year. -

Before the 2010 election, the Garra_rd County Fiscal Court fixed the
salary for the county jailer for the ensuing term to be $20,300.02 per year.

After completing Tuggle’s term, Middleton ran for jailer and was elected and

 

1 Ky. Const. § 99.

111

continued to serve as the Garrard County Jailer. In 2012, Middleth filed suit
in circuit court contending that: (1) he was entitled to the difference between
the salary he had been paid for fulfilling the expired term and the salary 'I`uggle
received during his tenure as jailer; and (2) as a matter of law, the Garrard
County Fiscal Court was statutorily barred from lowering the county jailer’s
salary before the 2010 election to an amount less than the $30-,547.‘97 that
'I`uggle received.' Related to his suit, Middleton also requested an award of
attorney’s fees. '

The trial court granted partial summary judgment to both parties. First,
the circuit court ruled that Garrard County was obligated to pay 'Middleton

$30,547.97 while he completed Tuggle’s term. But second, the trial court ruled

` that the fiscal court was statutorily authorized to reduce the jailer’s salary

before the commencement of a new term, so Middleton had no continuing

` entitlement to a minimum salary of at least $30, 547 .'97. And iinally,\ the trial

court denied Middleton’s request for attorney’s fees. .

Both parties appealed -to_the Kentucky Court of Appeals. The appellate
panel affirmed the circuit court’s ruling that the fiscal court could not reduce
the county jailer’s salary during the course of an elected term and held that
Middleton was entitled to the difference between his pay and Tuggle’s. |The
panel also rejected Middleton’s request for attorney’s fees. But the Court of
Ap'peals reversed the ruling allowing the fiscal court to reduce the jailer’s salary

between terms. Relying on lVallace v. KingZ, the panel held that the plain

 

2 973 s.W.2d 475 (Ky. App. 1998).

language of KRS 441.243(3] prohibits the county jailer who does not operate a
full-service jail to receive a salary lower than he received the prior year.

We granted Garrard County’s motion for discretionary review to
determine whether KRS 441.245 applies only-to mid-term salary alterations or
whether it broadly limits a fiscal court’s ability to set jailer salaries in a general
sense. hecause we agree-with the Court of Appeals that the‘plain language of
_KRS 441.243(3) dictates this admittedly odd, yet not absurd, result, we aflirm

the ruling below.

II. ANALYSIS.
Of the three issues brought before the Court of Appeals, _it appears only '

two of those remain for our consideration on discretionary review. Based on
Garrard County’s petition for discretionary review, it appears that the county is
not challenging both lower-court rulings awarding Middleton backpay based on
the mid-term salary adjustment he received for completing Tuggle’s term. So
we will not undertake analysis of this issue. We address only Garrard County’s
discretion to establish the jailer’s salary in between"terms and Middleton’s
claims for attorney’s fees, an issue he re-asserts in his brief.

A. Standard of Review. -
This case comes before us for review of the trial court’s grant of partial

summary judgment in favor of both parties. While factual findings shall not be
set aside unless clearly erroneous, conclusions of law are reviewed de novo.3

Here the material facts culminating in the present litigation are undisputed. So

 

3 Baze‘v. Rees, 217 s.w.ad 207, 210 (Ky. 2006}.

4

this case truly involves only questions of law. As such, we review the decisions
below totally under the de novo standard of review.

B. The Pla.in Meaning of KRS 441.243(3) is Not Ambiguous.
First, and most irnportantly, Garrard County appeals the Court of

Appeals’ ruling that the text of KRS 441.243(3) prevents the fiscal court from
decreasing the county jailer’s salary in between elected terms of service. While
Middleton maintains that this provision speaks generally to the county’s overall
ability to set jailer salaries, Garrard County points to the statute’s'overt
reference to KRS 64.527_Kentucky’s codification of the “rubber dollar”
doctrine_in support of its.point that this salary statute only limits how the
fiscal court may operate in the course of a jailer’s current term of service. That
statute does not, according to the county, impact the fiscal court’s power to set
the salary as it deems appropriate for future terms. Though ,KRS 441.245 is the
only statute directly referencing the overall salaries for jailers who do not
operate full-service jails, the Kentucky Constitution and supporu'ng statutes
delineate a clear structure and provide a fixed set of rules for the various
possibilities facing fiscal courts.

Somewhat uniquely, county jailers are specifically referenced in' the
Kentucky Constitution. Section 99 mandates that every county have an elected
jailer irrespective of whether that county maintains a full-service jail. The
constitution also goes to some lengths to specify basic terms and conditions
surrounding the compensation of these oiiicers. Section 161 specifies:

The compensation of any city, county, town or municipal oiiicer
shall not be changed after his election or appointment, or during

5

his term of office;- nor shall the term of any such ofi_icer be

extended beyond the period for which he may have been elected or

appointed. `

Section 235 reiterates this point for all public officers and reserves the power to
regulate and deduct salaries for neglect of official duties to the province of the
General Assembly. So the Kentucky Constitution serves two critical functions
relevant to today’s disputes every county must have a jailer and the jailer’s

' salary may not be changed during the jailer’s term of office.

As for actually setting the salary the county jailer is to receive, the
General Assembly vests that power‘in the county fiscal court. Indeed, fiscal
courts arc responsible for the allocation of public funds for an efficient local
government, entrusted with the power and duty to “regulate and control the
fiscal affairs of the county.”4 More specifically, the General Asser_nbly mandates
that fiscal courts “provide for the incarceration of prisoners according to the
provisions of Chapter 4_4” that includes carrying out government functions
“necessary for the operation of the county.”5 In Casey County Fiscal Court v.
Burke, we held that limitations on a fiscal court’s flexibility to finance various
government services “cannot be implied and must be an express restriction.”6
Garrard County reminds us that this is an extension of the Home Rule
principle, which intentionally permits local governments “latitude and

flexibility” to conduct their own affairs. See KRS 441.025(2)(c). So the county

 

4 KRS 67.080(1)`(¢).
5 KRS 67.083(3)(@).
6 743 s.w.2d 26, 27 (Ky. 1988).

correctly identifies that we cannot limit the fiscal court’s ability to alter salaries

J for future elected officials unless that limitation is clearly expressed by statute.
And absent any statute or constitutional minimums or maximums to the
contrary, the fiscal court remains free to set local official salaries according to
its discretion.

KRS 441.245 is one such example of the General Assembly‘instructing
fiscal courts in reaching its own financial decisions, laying out basic
parameters for fiscal courts ir_l establishing the salary for county jailer. And by
exercising its dormant authority over local government, the statute also serves
as an inherent limitation to the hscal court’s discretion in budgeting and
establishing municipal government..As it happens, this is also the only statute
directly speaking to general compensation for county jailers servicing a county
without a hill-time jall. `

The relevant portions of_ KRS 441.245 revolve around its first three
sections. They provide that:

1(1) The jailer who operates a full-service jail shall receive a monthly

salary pursuant to any salary schedule in KRS Chapter 64
applicable to jailers operating a full service jail from the county
jail operating budget.

(2) No jailer holding oft'lce' ln the Commonwealth on or after
January 6, 1999, shall receive an annual salary of less than
twenty thousand dollars ($20,000).

(3] The salaries of jailers who are not subject"to any salary
schedule in KRS Chapter 64 may be set at a higher level if their
salary does not exceed the constitutional salary limit applicable

to jailers. These jailers’ salaries shall at least equal the
prior year’s level and may be adjusted by the fiscal court for

the change in the prior year’s consumer price index according
to the provisions of KRS 64.527.7

The‘re is no_ dispute that KRS 441.245 limits discretion in setting jailer salaries;
the question at the heart of to‘day’s case is the magnitude and breadth of the
instruction the General Assembly imposes ‘on county government In matters of
statutory interpretation, the hrst rule is that the text of the statute is
supreme.B This is an analysis dependent upon the context of the statute as a
whole, with the chosen language presumed to be understood according to its
h ordinary public meaning.9 And of most signihcance, our focus on the statutory
text prohibits us from construing a meaning that the words simply will not
bear.10 Employing our rules of interpretation, we see KRS 441.245 as a clear
and methodical statute outlining all- jailer salaries as set by the fiscal court.
The first two sections of KRS 441.245 are simple enough; there does not
appear to be any dispute to their meaningsl Section one unambiguously
applies~_to county jailers who operate full-service jails. Their pay schedules are
cross-referenced with Chapter 64, and the General Assembly merely instructs
fiscal courts to follow those guidelines when establishing jailer salaries. And

these guidelines allow for the possibility that a fiscal court may reduce the

 

7 (emphasis added). We recognize that KRS 441.245 was amended during the
2017 legislative session to include additional information relating to jailers falling
under the classification in section (3). These amended provisions do not impact the
resolution of Middleton’s claim, nor do they alter in any way the statutory texts

underlying this dispute.

3 See Owen v. University of Kentucky, 486 S.W.3d 266, 270 (Ky. 2016)(“...the
words of the text are of paramount concern, and what they convey, in their context, is
what the text means.”).

9 Id.
10 RL

<J

jailer’s salary for the next term of office. Section two applies to all county
jailers, irrespective of whether they operate full-service jails or not. And this
section informs the fiscal court that their salaries may not be less than
$20,600 per year. Notice that none of these provisions appears to limit only
mid-term salaries; there is no such limiting language They appear to lay down
abstract, generally applicable compensation rules. The context of the statute
overall, to this point, does not bear a construction that softens its instructions
to fiscal courts to only temporal adjustments So to accept Garrard County’s
argument, we must see this limitation in the clear meaning of section three
itself, in spite of context. To do this would force us' to incorporate Words and
meanings into this text that simply are not there. 1

Like the first two-sections, KRS 441.245(3) is crystal clear as to whom it
applies, if in a roundabout way.,This provision applies to jailers not subject to
the salary schedule detailed in Chapter 64. Among this class of excluded jailers
are those, like Middleton, that do not service a county jail'. The first clause is ~
also unmistakably clear. This authorizes the fiscal court to set the salary for
jailers like Middleton at a higher level, up to the constitutional maximum. Read
in unison with section two, the fiscal court is statutorily bound to compensate
Middleton at a salary between $20,000 and the limit established in the
constitutionl Th_en comes the elephant in the room.

The next sentence informs fiscal courts that these jail- -less jailers are to
receive a salary that' ls “at least equal” to the prior year ’,s which may be

adjusted in accordance with the consumer price index. Garrard Co`unty focuses

9

d

on this adjusting power as an implied limitation to the breadth of the General

‘ Assembly’s statement on the salary issue. KRS 64.527, or the “rubber dollar"

'statute, is an exception to the mid-term-salary-adjustment prohibition in the
Kentucky Constitution. As a general matter, this statute allows mid-term
annual adjustments based on the value of the dollar and the relative changes
in purchasing power from year to year. Because of the reference to KRS 64.527,
the county argues that for purposes of generally construing KRS 441.245(3),
“the prior year” means ‘-‘the prior year so long as that prior year was within the
current term of office and not within a preceding term of office.”

The Court of Appeals panel rejected this interpretation because it deemed
adopting this view required adding.qualifiers to the established statutory text.
In reaching this conclusion, the panel embraced the holding i_n Wallace v. King,
a Court of Appeals ruling that Garrard County seriously questions as
applicable given statutory alterations to KRS 441.245 in the nearly two decades
since the case was decided. In Wc`tllace, the Court of Appeals rejected an
argument almost identical to the one Garrard County advances today, except
that in that instance a county eliminated its jail during the course of a jailer’s
.term.ll The county, in response, attempted to decrease the jailer’s salary.l2 In
rejecting the county’s argument, the panel found “neither equivocation nor
ambiguity in the language dictating that whatever sum was the jailer’s salary in

1983 should continue thereafter_-with the only change permitted consisting of

 

11.973 s.w.2d 485.
12 1a

10

an upward escalation to allow for inflation in reference to the consumer price
index.”13

At the time Wallace was decided, KlZS 441 .245 did indeed look quite
differentl The pre-1998 version of this law was as follows:

{l) The jailer shall receive a monthly salary from the county jail
operating budget.

(2) fn recognition of the increased duties and responsibilities of the
office of jailer, jailers holding office on July 1, 1982, shall be
entitled to' a level of compensation in calendar year 1982 which
shall be equal to the compensation of jailer in calendar year

' 1981 as adjusted for the change in the consumer price index
during calendar year 1981 or $12, 000, whichever is greater.

' The fiscal court may establish a higher level of compensation for

__ the jailer, provided, however, that' in no event shall the jailer’ s
compensation exceed the maximum compensation allowable for
county officials under KRS 64.527. lIn the event that a jail was
closed during calendar year 1981, the secretary of finance may,
upon proper documentation by the jailer, direct that a prior
calendar year’s level of compensation be used as a basis for
setting the jailer’s compensation pursuant to this section.

(3) The jailer’s monthly salary for the period July, 1982, through
December, 1982, shall be'the jailer’s compensation for calendar
year 1982 as provided in subsection (2) of this section less the
jailer’s earnings for January through June, 1982, divided by six
(6].

(4) Except as provided in subsection five (5) of this section, the
jailer’s compensation for 1983 and subsequent years shall
equal the prior year’s compensation and may be adjusted
by the fiscal court for the change in the prior year’s
consumer price index. 0

(5) Effective January 6, 1986, the salary for jailer_s' m any county
where there is no jail and the jailer does not transport prisoners
shall be twelve thousand dollars ($ 12 ,000) per year. '

This statute has undoubtedly undergone a major makeover since Wallace'was
decided. Most notable to this case, this version of KRS 441.245 set a fixed

salary to classes of jailers like_Middleton--that do not operate jails. But it

 

13 Id. at 487.

ll

cannot go unnoticed that the Wallace court focused its attention to the
meaning of subsection (4)-language essentially identical to that now contained
in KlRS 441.245(3). We' agree that it is not exactly the same and should not be
treated as such, but we also reject any notions that the rationale behind the
Court of Appeals’ ruling in Wallace is irrelevant to our review today simply
because other aspects of the statute have been altered over the last twenty
years. 4

Of course-, Wallace binds this Court in no way whatsoever, and we need
not rely on any of its heavy ljfting. But in reaching our own conclusion, we
must agree with the Court of Appeals’-ruling in this case. To interpret this
statute according to`Garrard County’s argument', we would have to insert .
qualifyinglang`uage that simply is not there and unimplied from the context of
the statute as a whole. The only power the Hscal court wields in setting salaries
for jailers of this type from term to term is the ability to increase his salary up
"to the constitutional limit. This is made perfectly clear by the legislature’s
choice to affirm that the jailer’s salary shall at least equal the prior year’s level.

We do agree that the clause relating to the “rubber dollal'” doctrine does
in fact speak to mid-term alterations. This is evident from use of the.word
adjust paired with an object, which in this context refers to the fiscal court’s
ability to “bring to .a more satisfactory state,” or to “make correspondent or
conformable.”l‘* Putting two and two together, this clause simply allows the

fiscal court to take Middleton’s salary as defined by law in the preceding

 

14 webster’é, Third New mta-national Diciionary (1993).

12

provisions and slightly alter it in accordance with the cost of living. :-So it most
clearly is a midpterm adjustrnent, but unrelated to his base salary-the rules of
which are clearly detailed in the remainder of KRS 441.245(3).
In many ways, this statutory scheme might appear to have an ironic

twist: the law allows jailers that actually service county jails to be subject to

l term-to-term salary changes and reductions, but insulates jail-less jailers from
salary decreases in perpetuity. While this is a head-scratching result, and
potentially one the General Assembly _c_lid not intend to create, we cannot say it
_is -absurd. And we see no cause to contort the words of the statute to avoid the
truth about KRS 44-1.245(3)-_-the words mean what they s'ay.

C. Middleton is Not Entitled Attorney’s Fees.

Middleton also re-asserts his supposed entitlement to attorney’s fees.
Garrard County contends that he did_ not adequately preserve this issue for
appeal to this Court. Because his argument appeared for the first time in his
brief, we agree'with Garrard County and will not consider Middleton’s attorney-

fee argi_iment. So we affirm the Court of Appeals on that issue.'

III. CONCLUSION.
For the foregoing -reasons, we affirm the ruling of the Court 'of Appeals.

A]l sitting. All concur.

13

coUNsEL FoR APPELLANTS;

John L. Gay

Litany Loren Webster
Walther, Gay & Mack, PLC
COUNSEL FOR APPELLEE:

Gerry L. Calvert II
Calvert Law Group, LLC

James Paul Long Jr.

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