Request By:
Mr. J. Bruce Miller
Jefferson County Attorney
1129 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You enclosed a copy of OAG 74-11 in which we concluded that the fiscal court is not required to furnish the county attorney an office in the courthouse. However, where the fiscal court assigns no space for him in the courthouse, the county should be responsible for the rental of his office located outside of the courthouse allocated on the basis of the percentage of the use of the office for county business. As you pointed out, Judge Cullen, in Funk v. Milliken, Ky., 317 S.W.2d 499 (1958) 507, 508, wrote that the expense of maintaining an office for carrying on the legal business of the county is properly an official rather than a personal expense, and should be allowable on proof of reasonableness as to the claimed percentage of business done in the office for the county and the amount of the rent. As underlying support for the court's position taken in Funk, see Barkley v. Gatewood, 285 Ky. 179, 147 S.W.2d 373 (1941); Nolan v. White, Ky., 411 S.W.2d 457 (1967); KRS 64.530; and KRS 67.080.
You request we update the opinion in terms of the effect of the Judicial Amendment upon its validity. Specifically, this would include the effect of the state now paying the salary of the county attorney and whether fiscal court would still be responsible for a pro rata portion of the office rental.
Under the Judicial Amendment, and under § 109 of the Kentucky Constitution, a district court was created to take the place, on January 2, 1978, of all inferior courts, i.e., the quarterly, city police, and justice's courts, all this under a unified judicial system. In implementation of the new system, the General Assembly in KRS 15.725(2) provided that the county attorney shall attend the district court in his county and prosecute all violations of criminal and penal laws within the jurisdiction of the district court. For his prosecutorial duties the county attorney shall receive an annual salary to be paid out of the state treasury. For his civil duties performed for the fiscal court under KRS 69. 210 [also see KRS 64.530], the fiscal court must pay a salary to the county attorney. The combination of the two salaries cannot exceed the constitutional rubber dollar maximum. Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965) 363. However, we are of the opinion that the fact the state under present or future legislation might pay all or most of the county attorney's public compensation is not controlling, when considering the terms of KRS 15.750.
KRS 15.750(3) requires the state to pay for office expenses of the county attorney incurred by him in the performance of his duties as criminal prosecutor. Subsection (4) requires that office expenses incurred by the county attorney in the performance of his duties as legal adviser to the county shall be paid by fiscal court or urban county council.
It is our opinion that under the provisions of KRS 15.750, the state and county must separately bear that portion of the county attorney's office rent based upon the percentage of time spent by him on prosecutorial business [state's responsibility for paying that] and time spent on the county business [county's responsibility for paying that]. The remaining time percentage would be for time spent in private practice, which rental allocation would be borne by the county attorney out of his personal or nonpublic funds. KRS 15.750(3) becomes effective July 1, 1978. Subsection (4) of that statute becomes effective January 1, 1978.