Request By:
Mr. Rex A. Thompson
Director of Business Affairs
Murray State University
Murray, Kentucky 42071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
KRS 45.180(1) provides that each state officer or employee shall receive "his traveling or other expenses" incident to the discharge of his official duties. (Emphasis added). Subsection (7) of that statute provides that in lieu of the reimbursement of expenses as provided in subsection (1), except as otherwise provided by law, the Executive Department for Finance and Administration may issue rules and regulations to permit the payment out of the state treasury of a fixed expense allowance per day to be established by the commissioner of said department, plus necessary travel expenses, to each state officer or employee in the discharge of his official duties. Where the state officer or employee drives his own vehicle in the discharge of his official duties, the amount of such car expense shall be fixed by the Commissioner of the Executive Department for Finance and Administration, which sum shall include depreciation and investment charges incident to the operation of the motor vehicle. KRS 44.060. Thus under the statutes [KRS 44.060 and 45.180] there is no minimum or maximum for vehicular and nonvehicular expenses. KRS 45.180(7) does provide for the commissioner's establishing fixed expense allowances by administrative regulations.
The Executive Department for Finance and Administration has recently promulgated 200 KAR 2:065, effective January 1, 1977, which provides for maximum subsistence expenses for meals, lodging and related expenses, depending on the number of hours between departure and return. Transportation expenses must be reimbursed as provided in and at the rates established by 200 KAR 2:050. Where a privately owned vehicle is used, the rate is fourteen (14) cents per mile for travel in state. 200 KAR 2:050, Section 10.
Question No. 1:
"The stated 'Necessity and Function' of the regulation indicates that this regulation 'establishes the maximum fixed amounts per day payable . . .' Section 2 indicates that 'Transportation expenses shall be reimbursed as provided in and at the rates established by 200 KAR 2:050, Transportation.' Our question is whether the rate so established -- currently 14 per mile -- represents an absolute requirement or the maximum mileage allowance payable."
As for the travel allowance, the rate of fourteen (14) cents per mile, where a privately owned vehicle is used, is mandatory and absolute. Under the express wording of the regulation, 200 KAR 2:050, Section 10, the rate of fourteen (14) cents per mile is the only authorized rate. No more and no less. It is not given as a maximum in a narrow technical sense, since a maximum could suggest some lesser rate. The rate is to be uniformly applied. Of course under Section 10 of that regulation, the total mileage reimbursement allowed for out-of-state travel in a privately owned vehicle shall not exceed the lesser of rail or air coach fare to the same destination.
Question No. 2:
"Since 200 KAR 2:060 was not rescinded by 200 KAR 2:065, may an agency elect to reimburse 200 KRS 2:065, MAY AN AGENCY ELECT TO REIMBURSE for subsistence under either regulation (one requiring receipts, the other a flat per diem) ?"
It is our opinion that, except where a specific statute dealing with specific officers of boards, commissions, etc., provides otherwise, 200 KAR 2:065, providing a per diem expense allowance, is mandatory as to subsistence and related expenses. Section 1 of 200 KRA 2:065 provides in part that except as provided by specific law, subsistence expenses can only be claimed under this regulation. The language in Section 1 of 200 KAR 2:065 is clear enough to indicate an intent to supersede 200 KAR 2:060 generally and except as to some specific statute making special provisions in connection with some state officer, board or commission member, etc.
The above regulations have the force of law. KRS 13.081 [repealed] and 13.105. See